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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

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LAW  LIBRARY 


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A  COMPENDIUM 


OF  THE 


LAW  OF  EVIDENCE. 


A  COMPENDIUM 


QF    THE 


LAW  OF  EVIDENCE. 


BY  THOMAS  PEAKE,  Esq, 

Ml 

SERGEANT  AT  LAW. 


FROM  THE  FIFTH  LONDON  EDITION,  WITH  LARGE  ADDITIONS. 


THE  AMERICAN  EDITION 

CONTAINING  THE    LARGEST  COLLECTION   EVER   PUBLISHED, 
OF  DECISIONS  IN  THE  DIFFERENT 

STATE  AND  UNITED  STATES  COURTS. 

BY  JOSEPH  P.  NORRIS,  Jdn.  Esa. 


PHILADELPHIA  : 

PU'BLISHED   BY  ABRAHAM  SMALI.. 

1824, 


T 

ISM- 


Eastern  District  of  Pennsylvania^  to  wit: 

BE  IT  REMEMBERED,  That  on  the  twenty  second  day  of  September, 

in  the  forty-ninth  year  of  the  Independence  of  the  United  States  of 

rSEAL  1    ^^'"^'^^^^<  '^-  ^-  1^24,  Abraham  Small,  of  the  said  district,  hath 

I-  ■•'    deposited  in  this  office  the  title  of  a  hook,  the  right  -luhereof  he  claims 

as  proprietor,  in  the  -words  foUoioing  to  wit- 

"  A  Corapendinra  of  the  Law  of  EvidPnce.  By  Thomas  Peake,  Esq.  Sergeant  at 
Law.  From  the  fifth  London  edition,  with  large  adiliiiotis.  The  American  edition 
containing  the  largest  collection  ever  published,  of  decisions  in  the  different  State 
and  United  States  Courts.     Bj  Joseph  P.  NoiTis,jun.  Esq. 

I71  conformity  to  the  act  of  the  Congress  of  the  United  States,  intituled  "  An  act 
for  the  encouragement  of  learning,  by  securing  the  copies  of  maps,  cluirts,  and 
books,  to  the  authors  and pi^oprielors  of  such  copies  during  th^^  times  therem  men- 
tioned.'''' And  also  to  the  act,  ejititled,  "  An  act  suppleinentary  to  an  act,  entitled 
'  All  act  for  the  encouragement  of  learning,  by  securing  the  copies  of  maps,  charts, 
and  books,  to  the  authors  arid  proprietors  of  such  copies  during  the  times  therein 
mentioned.^  and  extending  the  benefits  thereof  to  the  arts  of  designing,  engraving, 
and  etching  Itistorical  and  other  prints." 

D.  CALDfFELL, 

Clerk  of  the  Eastern  District  of  Pennsylvania. 


5t 

5^ 


ADVERTISEMENT 

OF  THE  AMERICAN  EDITOR. 


The  Editor  of  this  edition  of  Mr.  Peake's  Compen- 
dium of  the  Law  of  Evidence,  is  well  aware  of  the  atten- 
tion of  late  bestowed  to  this  branch  of  legal  learning  ; 
and  in  offering  to  the  profession  this  work,  he  by  no 
means  wishes  to  disparage  the  character  or  authority  of 
any  other  on  this  subject. 

The  great  object  in  view  has  been  to  collect  the  vari- 
ous decisions  in  the  United  States,  as  far  as  they  could 
be  procured,  through  the  medium  of  the  reporters,  and 
to  present  them  to  the  profession,  consolidated,  in  refer- 
ence to  the  text. 

It  will  be  found  that  in  some  instances  he  has  been 
induced  to  extend  his  labours  beyond  what  was  abso- 
lutely required  by  the  text,  for  the  purpose  of  embracing 
many  decisions,  of  importance  in  this  country,  arising 
from  the  different  constitutions  of  the  governments,  and 
characters  of  the  laws,  under  which  we  live. 

In  a  few  instances  he  has  added  some  English  cases, 
but  only  where  the  novelty  of  the  subject,  or  the  im- 
portance of  the  decision  seemed  to  warrant  such  a  depar- 
ture from  the  plan  of  the  work. 

Uniformity  in  the  decisions  of  the  Courts  of  the  different 
States  on  the  same  subject  could  not,  in  all  cases,  be  ex- 
pected, particularly  when  we  bear  in  mind  that  the  science 


GG3785 


yj  ADVERTISEMENT. 

of  jurisprudence,  in  the  primitive  state  of  the  Colonies,  was 
little  else  than  "  riides  indigestaqiie  molest  and  when  the 
elements  of  the  rules  of  decision  were  derived  from  the 
customs  of  the  day,  which  formed  the  code  of  common 
law  on  which  they  were  founded. 

On  the  whole,  the  labour  required  from  the  Editor 
will  be  amply  repaid,  if  his  exertions  shall  procure  what 
he  has  wished  to  obtain  as  a  desideratum,  at  least  on 
those  points  which  arise  on  trials  at  Nisi  Prius^ — a  book 
in  which,  reference  to  the  adjudications  of  our  Courts 
may  be  readily  had  ;  and  where  the  ample  store  of  judi- 
cial learning  and  talent  is  unfolded  to  view,  without  refer- 
ence to  the  Digests,  or  seeking  amidst  the  labyrinths  of 
the  reporters. 

J.    P.  N.  JUN. 

Philadelphia^ 
IsJ  September,  1824. 


PREFACE 

TO  THE  FIFTH  LONDON  EDITION. 


The  following  work  is  now,  for  the  fifth  time,  pre- 
sented to  the  profession.  When  originally  published, 
the  Author,  as  he  then  expressed,  had  in  view  a  produc- 
tion which  should  be  a  companion  on  the  circuit ;  always 
at  hand,  and  ready  for  immediate  reference.  He,  there- 
fore, put  it  forth  merely  as  a  practical  Compendium^  and 
not  as  an  elaborate  and  theoretical  Treatise,  which  he  was 
well  aware  would  swell  it  to  a  size  that  would  entirely 
destroy  its  utility.  He  has  still  kept  the  same  object  in 
view,  but  has  at  the  same  time  endeavoured  to  include 
all  the  points  which  are  likely  to  occur  at  Nisi  Prius. 
Since  the  publication  of  the  last  edition  many  new  ques- 
tions have  occurred  in  the  Courts  at  Westminster ;  and 
the  Banbury  and  Berkeley  Peerages,  and  the  Queen's 
Case  in  the  House  of  Lords,  have  not  only  explained 
many  points  which  might  have  been  before  considered 
as  doubtful,  but  have  also  raised  and  decided  points 
which  had  never  before  occurred.  These  have  all  been 
introduced  into  the  work  from  time  to  time  as  they  arose. 

The  author  has  long  been  aware  that  the  Index  and 
Table  of  Contents  of  the  former  editions  were  too  general 
to  afford  that  ready  reference  which  the  hurry  of  Nisi 
Prius  so  particularly  requires.     To  remedy  this  defect, 


Viii  PREFACE. 

an  entire  new  Index  and  Table  of  Contents  have  been 
made,  of  such  size  and  particularity,  that  it  is  confidently 
hoped  no  future  inconvenience  will  be  experienced  on 
that  account. 

Although  a  very  large  quantity  of  new  matter  has  been 
added  in  the  present  edition,  yet,  by  printing  in  a  closer 
type,  the  work  has  been  brought  into  a  smaller  compass 
than  the  last  edition.  To  the  younger  student  who  may 
wish  to  read,  this  will  probably  be  no  inconvenience  ;  and 
to  those  whose  experience  renders  nothing  more  than  oc- 
casional reference  necessary,  the  Author  hopes  that  any 
small  inconvenience  which  may  be  felt  on  account  of  the 
closeness  of  the  letter,  will  be  more  than  compensated  by 
bringing  the  work  into  a  portable  size. 

When  the  Author  first  turned  his  attention  to  the  Law 
of  Evidence,  he  was  treading  on  almost  new  and  unbro- 
ken ground  ;  nothing  but  the  unfinished  publication  of 
Lord  C.  B.  Gilbert,  and  the  little  more  than  copy  of 
it  by  Mr.  Justice  Buller,  being  before  the  profession. 
Considerable  differences  of  opinion  had  been  entertained 
even  by  Judges  on  various  points  which  had  from  time 
to  time  arisen,  and  therefore  the  Author  deemed  it  neces- 
sary to  insert,  by  way  of  Appendix,  several  cases  which 
were  considered  as  leading  ones  on  the  subject.  Most 
of  those  disputed  points  having  now  become  settled  law, 
the  Author  deems  it  no  longer  necessary  to  continue 
many  of  the  cases  so  published ;  and  therefore  has,  in 
this  respect,  also  considerably  reduced  the  size  of  hrs 
book. 

Temple, 
1st  January,  1822, 


TABLE  OF  CONTENTS. 


PART  I. 


CHAt».I. 

OF  THE  GENERAI.  RULES  OF  EVIDENCE. 

1.  The  proof  lies  on  the  party  who  alleges 

an  affirmative,  page  7. 
Exception  to  this  rule,  8. 

2.  The  evidence  must  be  confined  to  the 

issue,  10 
(See  Part  11.  C.I.) 

Character  of  parties  when  considered  in 
issue,  13. 

General  or  particular  evidence  of,  ibid. 
Opinions    of   the    Judijes    in    the 
Queen's  case,  as  to  proof  of  con- 
spiiacy  among;st  witnesses,  14. 

3.  The  best  evidence  fqiiire'l,  15. 

When  more  than   me  witness,  ibid. 
When  examination  on  oath  dispensed 

with, 'il. 
Hearsay  and  general  reputation,  23, 

28. 
Entries  by  deceased  pcrsovis,  25.  29. 

Their  dying  'I<;clarations,  25. 
Admissions  oft  he  pat  tvin  the  cause, 34. 
of  his   wife — servant — a- 
gent  or  attorney,  ibid. 
Distinction  between  admission  of 
by-gone    transiction    and    res 
gestii,  38. 
Offbrof  compromise,  41. 
Confession  of  felon,  43. 
Presumption  of  facts, 
From  acts  of  the  party,  44.   , 
From  U  ,igth  of  time,  49. 
Rebutted  by  other  circamstanees, 
ibid. 

CHAP.  n. 

OF  WEITTEN  EVIDCTCE. 

Sect.  I. 
Of  jRecords. 

1.  Acts  of  Parliament, 
Public,  54. 
Private,  ibid. 
B 


2.  Judgments  of  superior  Courts, 

Exennilifii-  ti'i-s  of,  57. 
Sworn  copies,  58 
Office  copies,  61 ,  62. 
Secondary  •  vidence  of,  ibid. 

Effect  of  in  civil  cases,  63. — Iti  crimi- 
nal cases,  75. 

3.  Fines,  and  their  proclamations,  61. 

4.  Deeds   enrolled,   ibid.     (See   Sect.  IV. 

No    4.) 

5.  Rules  oi'  Court,  ibid. 

6.  Depositi'ins  taken  before  a  Judge,  62. 

7.  Writs  returned,  82. 

StcT.  n. 


Of  Public  Writings  not  Records. 

Joninals  of  P.rl'amenf,"83. 
Proceedings  ui  Chancery, 

Bill,  85.  • 

Answer,  ibid. 

D.  iiosiiioHS,  89. 

Decree,  S6 
Pfoc  f^fllngs  in  Ecclesiastical  and  Adrai- 

rallj  Coiirts,  G9. 
Proceediiigs  in  foreign  Courts,  100. 
Pl'ocee.1;ii}^s  ill  inferio"  Courts,  HO, 

A'w'ard  of  arbitrators,  113. 
Acts  ct  State. 

Gazette,  124. 

Proclamjtioii,  ibid. 

Ariicles  A  war,  ibid. 
Public  booiis, 

Regisf^.  of -N'avy  Office.  124. 

Ri.=;i3VPr  ('fgaul.ibid. 

Logbook  )f  man  of  war,  ib  d. 

B:;  >k  :ino  Enst  India  books,  136. 
General  history,  126. 
Of  public  surveys,  128. 

D-.iomfday,  128. 

Sinv'j  ijf '.he  ports,  ibid. 

Coiiimis?ir;ns  aiid  imiuisiiions,  ibid. 
,  PHri«h  r-gisiers,  131. 

Rods  of  Court  bill  on,  1 13. 
,  T  'ri!e"s  .;M'i  Miiips,  134. 
,   Pij:  '.  Iic'.3e«'..l  bull,  135. 
,  Corporalioo  bookSj  135. 


TABLE  OF  CONTENTS 


Sect.  111. 

Of  the  Inspection  of  Public  Writings. 

1.  Proceedings  of  Courts  of  Justice,  137. 

2.  Books  of  pul)|pc  offices,  ibid. 

3.  Corporation  books,  138. 

4.  Court  rolls,  ibid. 

SECt.  IV. 

Of  the  proof  of  Bceds  ami  other  private 
Insti'uments . 

1.  Proftuction  of  original,  140. 
Dispensed  wiih. 
In  case  of  loss,  140, 
Proof  of  loss,  ibid, 
vhen  in  possession  of  adverse  parfj, 
and    notice    given    to    produce, 
140.  158.  '  ' 

Priof  of  notice,  ibid. 

2.  Proof  by  subscribing  witness,  145. 

When  dispensed  with,  1S2. 

3.  Proof  when  there  is  no  subscribing  wit- 

ness, 

Hand  writing  of  panv,  149. 
Proof  of. 

Belief  of  witness,  154. 
Comparison  of  hands,  155. 
Howf»r  opinioris  of  witnesses 
admissible,  156. 

4.  Deed  or  otlier  instruments  read  without 

proof. 

As  coming  out  of  the  hands  of  ad- 
verse party,  161. 

On  account  of  its  antiquity,  162. 

What  tus((,dy  necessary  to  prove  its 
authenticity,  ibid. 

As  being  recited  in  anotberdeed,  164. 

As  having  been  enrolled,  165. 

5.  For  and  against  whom  evidence,  and  to 

what  extent,  168. 

Sect.  V. 

Of  evidence  to  explain  -written  Documents- 

1.  General  rule. 

No  written  documeni  to  be  contradicted 
by  parol  testimony,  108. 

But  may  be  shewn  to  be  void  on  ac- 
count ol  fraud  and  misreprtjsentation, 
178,  193. 

2,  Latent  ambiguities  explainable, 

Two  peisnns  or  things  of  the  same 

name,  179. 
Mistake  in  the  name  of  u  person,  ibid. 
L;ind  formerly  one  tenement  divid- 
ded, 181 
Notex,)lain!iblesoastoew/nr^ethegrant, 
Where  there  is  suffici.nl  "to  satisfy  the 
words  of  the  instrument  according 
to  one  meaning,  181 . 

J^iord    Bacon's    maxim    on    this 
point,  ibid. 
Decisions  upon  it. 


Devise  of  estate  at  A.  183. 
estate  o/B    183. 
estate  in  C.  ibid, 
estate  in  A.  which 
I   purchased  of 
B.  183. 
Not  explainable  so  as  to  Tiarrow  the 
grant, 

Where  there  is  sofficient  descrip= 
tion  at  first,   but  some  unneces- 
sary worils  added,  184. 
Decisions  upon  this  point, 
Grant  of  tithes  in  the  parish 
of  A.   "ail   which  art-  in 
the  occupation  of  B."  184. 
Devise  of  Tr^gue's  fai  ro,  in 
"  the   occupation   of   B.'' 
184. 
Devise  of  all  mv  Britton  Fer- 
ry  estate,  described    in  a 
subsequent  part  of  the  will 
as  situate  in  G.  ibid. 

3.  Presumptive  construction  of  law  as  to  in- 

tention, 
Contrdlled  by  parol  evidence,  185. 
Surplus  of  personal  estate,  ibid. 
Fine  levied  without  deed  to  lead 

uses,  ibid. 
Will  suppostd  to  be  revoked  by 
subsequent  marriage  and  birth  of 
child,  186.   Qu  see  593. 

4.  Apparent  or  patent  ambiguity, 

In  general  not  explainable. 

Lord  Bacon's  maxim  on  this  point, 

186. 
Observations  thereon,  ibid. 
lnst:inces  of  ^x[!anations  received. 
In  mercantile  instruments,  186. 
Consideration   of  deed  takiig  effect 

under  Statute  of  Uses,  187. 
Presr-ntaiion.  with  blank  left  for  name 

of  patron  in  bishop's  register,  189. 
Ambignoiis  words  in  ancient  instru- 
ments, 191. 
Instances  of  ex])lanations  refused. 
To  add  to  contract,  Mhich  b<  Sattile 

of  Frauds  must   be  in  writmg,  188, 
To  fill  Up  blank  for  name  of  devisee, 

189. 
To  explain  meaning  of  covenants  by 

subsequent  act  of  the  parties,  192. 

CHAP.  III. 

OP  PAKOL  EVIDEHCE. 


Sect.  I. 

Persons  incompetent  to  give  evidence  by 
reason  of  the  imbecility  of  their  under- 
standings. 

1.  Idiots,  195. 

2.  Lunatics,  ibid. 

3.  Children,  ibid. 

4.  Deaf  aud  dumb  persons,  196 


TABLE  OF  CONTENTS. 


XI 


Sect.  II. 


Persons  incompetent  or  incredible  by  reason 
of  the  infanu)  of  their  Characters  or  reli- 
gious Opinions. 

1.  Persons  competent   though   not  worthy 

of  credit, 

Accomplices,  204. 

Peisiiis  who  have  before  sworn  dif- 
ferently, ibiii. 
Persons  of  bad  charncter  though  not 
convicied  of  crinu;,  197. 

How  ilieir  characters  may  be  at- 
tacked, ibid. 
By  whom,  198. 
When   on   cross-examination   of 

themselves,  202. 
By  the  testimony  of  others,  197. 
204. 

2.  Persons  wholly  incompetent, 

Those  convicted  of  certain  crimes,  197. 

What  crimes  incapacitate,  199. 

How  conviction  lobe  shewn,  200, 201. 
By  what  means  competency  restored, 

201. 

3.  Religious  opinions  of  witness. 

How  far  it  ntfects   his  competency  or 

credit,  205 
How  it  sh:»ll  affect  the  mode  of  swear- 
ing, 206. 

Sect.  III. 

JPersons  incompetent  by  reason  of  interest  in 

the  event  of  the  cause. 
General  rule. 
Must  be  directly  interested,  or  the  ver- 
dict evidence  for  or  against  him  in  ano- 
ther action,  209. 
Instances  of  pL-rsons  not  so  interested. 
Person  indicted  for  same  offence  as  pri- 
soner, 241. 
Wife  of  man  under  sentence  for  same 

offence,  ibid. 
Person  defrauded  on  an  indictment  for 
fraud,  217. 

Indictment  for  forgery  an  exception 

to  this  rule,  218.  Digest  (D.)  164, 

Corporators,  on   questions   renting  to 

corporations  at  large,  and  who  have 

no  individual  rignts, dependent  on  the 

question,  219. 

Exceptions  to  the  general  rule, 

1.  Persons  having  only  a  nominal  or  for- 

mal inter.st,  220. 

Trustees,  guardians  or  executors, 

229. 
Defendant  in  a  cause  against  whom 

there  is  no  evidincc,  225. 
Or  who  has  suffered  judgment  by 

default,  ibid. 

2.  From  necessity,  where  there  can  be  no 

other  witnesses. 

Plaintiff  in  his  own  cause  on  the 

Stat,  of  Winton,  221. 
Hundredors  loi-  .he  defendant  in 

the  like  case,  222. 


The  evidence  of  the  defendant  in  an 
action  for  malicious  i>rosrcuiion, 
on  the  criminal  inquiry, 223. 

Porters,  factors  and  sei-vanlii,  22.3. 
Digest  (A.)  pi.  8;  (B.)  pi.  1,2, 
3,4,5,6.  13;  (P  )pl.  2. 

3.  Persons   stamling  indifferent  between 

the  parlies,  227. 
Party  to  a   bill  of  exchange  in  an 
action  against  another  pa.ly,228. 
— other    instances.  Digest    (B.) 
pi.  5. 

Balance  of  interest  not  nicely 
weigh -(I,  228. 

4.  Persons  cl»inung  rights  who  have  none 

in  reality,  231. 

5.  Persons    acquiring    inidest   by   their 

ow:i  act  .tfter  event,  232 
Removal  of  int.rest. 

By  reli  ase  to  or  from  the  witness, 

234. 
Siatuu;  as  to  witness»-s  to  wills,  235. 
Digest  of  cases  as  to,the  interest  of  wit- 
nesses, 
(A.)  In  what  cases  corporators  and 
others  are  wiine^^ses  on  pub- 
lic questions,  237. 
(B.)  Servants  and  ageiiis,  240. 
(C.)   Witnesses    in  cases    of    bu.ik- 
ruptcy  and  insolvency,  242. 
(D.)  Witni'sses  on   indictments  for 

forg..M-y,244. 
(E.)  PersuMS  who  are  answerable, 
or  have  themselves  contract- 
ed, 245. 
(F. )  Persons  the  raselves  liable  charg- 
ing others, or  corairig  to  claim 
property  in  themselves,  246. 

Sect.  IV. 

Persons  incompetent  by  reason  of  their  rela' 
tion  to  the  parties,  or  acts  done  by  them. 

Who  are  excluded, 

1.  Husbaml  and  wife  for  or  against  each 

other,  247. 

Woman  who  lias  passed  as  such, 
though  not  legally  married  ;  qu. 
vide  Campbell  V.  Twemlow ,  Ad- 
denda: 

2.  Counsel,  solicitor  or  attorney,  250. 

What  cases  not  within  this  rule,  251. 
Who  not. 
Physician,  surgeon  br  clergyman,  251. 
Persons  who  have  executed  instruments, 

254. 
Hiisb«nd  or  wife,  to  deny  their  marriage, 
256. 

Sect.  V. 
Persons  privilegedfrom  examination. 

No  one  compellable  to  chargc>  himself  with 

crime,  257. 
AUter  in  the  case  of  a  civil  debt,  277. 
Statute  on  this  subject,  261. 


Xll 


TABLE  OF  CONTENTS. 


Sect.  VI. 


Of  the  examhiation  of  Witnesses. 

On  the  voire  dire,  261. 
In  chief,  '2652. 
Cross-examination,  269- 

As  to  i-ai'ers  writieri  by  himself,  271. 
Opinions  ol  the  Judges  ii>  the  Queen's 
Cast  on  this  point.  274. 

As  the  mode  of  putting  questions 
ab  to  representation  of  witness, 
275. 
Necessary  to  lay  ground  for  contradiction, 
276. 


Opinion  of  the  Judges  in  the  Queen  s 
Case  on  this  point,  276. 
Reference  to  writing  in  aid  of  memory , 

264.  • 

As  to  opinion  in  matters  of  science,  ibid. 
Re-examination,  277. 

Sect.  VII. 

Of  procuring  the  attendance  of  Witnesses, 
and  their  Pnvileges. 

Effect  of  subpoena,  279. 

habeas  corpus,  281. 
Pecuniary  allowance  to,  ibid. 
Protection  from  arrest,  ibid. 


PART  II. 


CHAP.  I. 

OP  EVIBEVCE  IV  GtSERAL,  AS  REOUtATED  BT 
THE  PLEATiIN(;s  OH  OTHl-H  PHOctliUl.NGS  IM 
A  C\DSE,  284. 

What  siiall  be  d  eraed  a  variance  between 
ilif  slat,  incnt  ;.i)o  ibe  evititiict, 
1.  lii  ciicu.!i5taiic>  s,  288. 

Noi  ihf  want  of  proof  of  impertinent 
allfi;;'!''"),  i^id. 
As  tl)';   scienter  in  a  warranty, 
ibid. 
^liter,  if  mt-nly  unnecessarv,  ibid. 
As  the  days  whereon  rent  is  paya- 
ble, ibid. 
Or  the  description   of  record,  289. 
Contracts  must  be    truly  slated,  ibid. 
As  ihe  loan  in  an  action  for  usury, 
290. 
So  nmst  custom,  29i. 
In  some  cases  the  custom  of  A.  will 
be  e\ideiice  of  the  like  custom  in 
B.  ibid. 
So  th<  general  mode,  of  fishing  in  a 
river,  ibid.' 
On  libcrum  ienementum,  as  to  a  right 
in  a  particular  pai  t  of  a  waste, 
Acts  of  ownership  iu  other  parts 
of  the  waste  itia>  be  given  in 
evidence,  291. 
So  wheie  manor  encircled  by  one 
belt  ol  trees,  ibid. 
Action  for  arresting  piaintifT, 
The  acts  of  third  persons  engaged 
in  a  riot  on  the  same  occasion, 
ibid. 
2.  in  time.    When  material,  290. 


3.  In  place. 

Diatinction  between  local  and  transi- 
tory actions,  292. 

Phiee  iiumaterial  when  merely 

alleged  as  veiiue,  il.id. 
Fev/j/e  changed  by  motion,  293. 
Undertaking  to  give  material  evi- 
dence, ibid. 

4.  Particulars  of  demands  under  Judge's 

order, 

How  far  they  restrain  the  general 
allegation  of  the  declaration,  295. 

5.  Rule  10  pa)  money  into  Court, 

Effect  thereof,  as  an  admission  by  the 
deteudani,  296. 

6.  Plea  of  tender, 

Efr>  CI  thereof  as  an  admission  by  de- 
fendant, 297. 

7.  Pleas  in  abatement. 

In  what  cases  pleadable,and  evidence 

thereon,  298. 
Distinction  between  actions  of   tort 

and  contract,  298. 

CHAP.  n. 

OF    THE    EVIDENCE    IN    THE    ACTIOK    OF    AS- 
SUMPSIT. 

Sect.  I. 

In  actions  on  written  contracts,  304. 
Stamp-duties  on  agreements,  305. 

when  paper  may  be  re-stamped,  308, 
Provisions  of  the  Statute  of  Frauds,  and 
cases  upon  it, 
1.  As  to  promise  to  pav  debt  of  ano. 
ther,312.  317. 


TABLE  OP  CONTENTS. 


XllI 


"2.  Purchase  of  interest  in  land,  312. 
320. 

3.  Promise  in  consideration  of  mar- 

riage, 312. 

4.  As  to  contract  not  to   be  perform- 

ed within  ayear,  312,  320. 

5.  For  sale  of  goods  of  value  of  lO;. 

312.  321. 
In  what  form  the  writing  must  be, 
323. 
In  actions  on  bills  of  exehange  and  promis- 
sory notes,  327. 
Stamp  duties,  ibid. 

Action  by  payer  against  acceptor,  341 . 

effect  of  special  acciptance, 

ibid.     See  Statute  1  &,  2 

Geo.  4.  Addenda. 

by   endorsee  against   acceptor, 

341. 

against    drawer, 
342. 
drawer  against  acceptor,  342. 
Protest  when  evidence,  ibid. 
Notice  to  one  of  several  partners,  ibid. 
In  actions  on  policies  of  assurance,  343. 
In  actions  betweea  vendors  of  lands  and 
goods. 

For  refusing  to  complete  agreement, 

372. 
On  a  warranty,  380. 
In  actions  between  vendor  and  vendee   of 
stock,    or   by    leader    against    borrower 
thereof,  384. 

Sect.  II. 

Of  the  evidejice  in  Jlctions  on  parol  and  im- 
plitd  promises. 

In  actions  for  goods  sold  and  delivered,  and 
work  and  labour,  385. 
Delivery  to  carrier,  386. 

to  wife  or  servant,  387. 
In  action  for  money  paid  to  defendant's  use. 
On  contract,  389. 
On  default  of  defendant,  ibid. 
Between  surety  and  principal,  390, 
In  action  for  money  lent,  393. 
lu  action  on  account  stitted,  ibid. 

In  action  for  use  ami  occupation,  394, 
Proof  of  occupation,  395. 

Where  there  is  agreement  in  writing, 

398. 
Cases  as  to  what  shall    be  deemed  a 
lease  and  what  an  agi'eemeut,  398. 
Defendant's  evidence. 

How  far  he  may  dispute   landlord's  ti- 
tle, 399. 
In  action  for  mismanagement  of  farm,  400. 
In  action  on  an  attorney's  bill,  400. 

Sect.  III. 

Of  the  evidence  on  the  part  of  the  Defendant, 
and  the  plaintiff's  Evidence  on  particular 
Jsaiies. 

CJeneral  issue, 

AVaui  of  consideration,  402. 


Work  badly  done,  403. 

Differences  of  opinion  oW  this  subject, 
413. 
Statute  of  Limitations,  416. 
Tender,  428. 
Infancy,  433. 
Coverture,  436. 

CHAP,  m. 

OF  THE  EVIDENCE   IN  THE   ACTION   OF    COVE- 
NANT. 

On  no?i  est  factum,  438. 
In  an  action  by  assignee  of  reversion  or  term  , 
443. 
Title,  when  set  out,  and  how  proved, 

444. 
Who  chargeable  as  such,  447. 

Assignees  of  bankrupt,  when,  ibid. 

CHAP.  IV. 

OF  THE  EVIDENCE  IN  THE    ACTION    OP   DEBT. 

Sect.  I. 

On  specialties. 
On    7wn   est  factum,   449. — Vide   ante. 

Chap.  HI. 
On  plea  ot  payment,  451, 
On   HSSf  ssment  of  damages  under  Stat. 

Win,  3,  450, 

Sect.  II, 

On  sinij)le  contracts 
On  nil  debet,  452, 

CHAP.  V. 

OP  THE  EVIDENCE  IN   ACTIONS  OX    STATCTE3. 

Sect.  I. 

Penal, 

Commission  of  offence,  454. 
Commencement  of  action,  455. 
Qnalification  or  excuse,  454. 
Howfar  acolourable  title  sufficient, 45u. 

Sect,  U. 

Remedial, 

General  ])rinciples,  457. 

Ill  action  for  double  rent,  ibid. 

In  action  on  Stat,  of  Hue  and  Cry, 

Time  and  place  of  robbery,  459. 

Notice  to  inhabitant,  ibid. 

Notice  to  constable,  460. 

Notice  in  gazette,  ibid. 

Affidavit,  461. 

B'ind  for  costs,  462. 
In  action  on  the   Riot  and  other  Acts  in 

pan  materia,  ibid. 

CHAP.  VI. 

OF  THE  evidence  IN  ACTIONS  ON  THE  CASK. 

General  observations,  465. 


XiV 


TABLE  OF  CONTENTS, 


Sect.  I. 

Actions  founded  in  malice  or  fraud. 
1.  Slamkr, 

Plaintiff's  evidence, 
AUfgaiions  to  be  proved,  466. 
Words  as  laid,  469. 

Oth  f  words  in  aggiavation,  470. 
Spee'.'J  i.Mio-igt,  .1,11) 
Publicmiori  ot  Ijbi  (,  473. 

Stat.  38  Geo.  3,  as  to  newspapers, 

ibid. 
Libel  in  foreitjn  language,  477. 
Derendant's  (vidinci-. 
In  detence  ot  action. 
Innocent  publisher. 

Without  knowledge,  ibid. 
Reporter  of  triwl,  ibid. 

ofresolutions  of  Parlia- 
ment, ibid. 
Promulgation  of  senti-nce,  ibid. 
Character    given    servants,   &c. 

ibid. 
Otli' r    confidential   communica- 
tions, ibid. 
Words  spoken    in   Parliament, 
478. 

But  he  caTinot  publish,  ibid. 
Justification  of  the  truth  of  words 
or  libel, 
Evidi  lice  confined  to  pai  ticular 
faeis  pleaded,  ibid. 
In  mitigation  of  damages, 
III  couduci  of  plaii  tiff,  ibid. 
His  general  bad  character,  ibid. 

2.  Malicious  prosecution. 

Prosecution  at  an  end,  ibid. 
Di  ff  ndant  the  prosecutor,  480. 
Want  of  probable  cause,  481. 

3.  Malicious  arrest,  48-2. 

4.  False  character  of  tradesman  or  servant, 

485. 

Sect.  II, 

Actions  founded  in  negligence. 

1.  For  keeping  a  noxious  animal,  486. 

2.  Laying  obstruction  in  a  highway,  487. 

3.  Running  toul  of  carriage  or  shiii,  ibid. 

Sect.  HI. 

Actions  for  disturbaiice  of  Easements. 
PIaiiitift''s  evidence, 

Length  of  enjoyment,  489. 

To  the  extent  claimed,  490.  493. 

In  what  cases  reputation  received,  493. 

Extent  of  injury  immaterial  ibid. 
Defendant's  evidtiice, 

Twenty  years  -non  user,  49L 

Occasional  obstruction,  494. 

Leave  asked  and  given,  ibid. 

CHAP.  VII. 

OF  THE  EVIDENCE  IN  THE  ACTIOS  OFTHOTEH, 

Plaintiff's  evidence. 
Absolute  property  and  right  to  possession, 
495. 


Special   property  and   actual  possession, 
495. 

Conversion,  actual,  or  refusal  on  demand, 
497. 
Defendant's  evidence, 

Property  in  another  whom  defendant  re- 
presents, 498. 

Lien,  499. 

Aieidi-ntal  loss,  ibid. 
Det.-ndant,  joint-tenant  with  plaintiff,  ibid. 
Anoihcrjoint-tena'.i  with  plaintiff,  ibid. 
Statute  of  Limitations,  500. 

CHAP.  vin. 

OF   THE  EVIDENCE    IN  ACTIONS    OF  TRESPASS 
ASlJ   REPLEVIN. 

Plaintiff's  evidence. 

Commissi  in  of  tnspass  by  defendant,  501 . 
Aiding  others  to  do  so,  ibid. 
On  one  or  more  days  as  laid,  502 
In  the  manner  stated  in  drclaration,  503. 
What  evidence  under  alia  enormia,  505. 
on  new  assignment,  507. 
Defendant's  evidence, 

JJberiim  tenemenlum,  ibid. 
Easemeni  by  prescription  or  grant,  ibid. 
Evidence  of  lost  grant,  ibid. 

CHAP.  IX. 

OF  THE  EVIDENCE  IN  TQE    ACTION  OF  EJECT- 
MENT. 

Sect  I. 
Plaintiff ''s  evidence  in  general. 

Right  of  entry  within  twenty  years,  509,512. 

A  disability  within  Statute,'  517. 
Actual  entry. 

In  what  cases  necessary,  509,  510.  518, 

Proof  of,  510. 

Commencement  of  action,  522, 
Actual  ouster — evidence  ot,  515. 

When  necessary  as  part  of  plaintiff's  proof, 
519. 

Defendant's    possession — now    admitted, 
520. 

Sect.  II. 
Defendants  evidence  in  general. 

Outstanding  term,  522. 

When  surrender  presumed,  ibid. 

Who  may  set  it  up,  524. 
Twenty  years  ailverse  possession,  509.  Vide 

supra.  Sect.  I. 

Sect,  HI. 
In  ejectmait  by  Landlord  against  Tenant. 

1.  On  notice  to  quit. 
Demise,  524. 
Notice  to  quit,  529. 
Teims  of,  ibid. 

To  whom  and  by  whom  given,  ibid. 
Waived  by  disclaimer,  530. 
Waived  By  lessor  of  plaintiff,  ibid. 


TABLE  OF  CONTENTS, 


XV 


Mesfle  iFofits  under  Slat.  1.  Geo.  4, 
531. 
3.  On  foifeiiuft  of  U-ase, 

On  the  Slai.  4  Geo.  2,  where  no  suffi- 
cient flistress,  532. 

A'  the  common  law,  ibid. 

What  act  will  amount  to  a  waiver,  534. 

Sf.Ct.  IV. 

Jn  Ejectment  by  Creditors  -who  have  a  Lien 
on  the  land. 

IVInrlgagee,  534. 
'I'enaul  by  elegit,  536. 

Statute  meichant, ibid. 

CHAP.  X. 

OF  THE  EVIDENCE  IN  THE  ACTION  Toil  MESNE 
PnoFITS. 

Judgment  and  execution  in  ejectment,  537, 

5.38. 
Titlf  before  judgment,  537. 
May  be  controverted  by  defendant,  ibid. 
Or  fine  shewn  without  entry  to  avoid,  539. 

CHAP.  XI. 

OF  THE  EVIDENCE  IN  THE  ACTION  BY  AND 
AGAINST  HUSBAND  AND  WIFE,  OH  BY  HUS- 
BAND, PARENT,  Oil  MASTER. 

Sect.  I. 

In  the  action  by  and  against  Husband  and 
mfe,'5iQ. 

Sect.  II. 

In  the  action  by  the  Husband  alone. 

1.  Criminal  conversation, 

PlainlifF's  evidence. 

Marriage  of  parlies,  541. 

Terms  on  which  thej'  lived,  542. 

Loss  of  t'oi  tune,  ibid. 
Defendant's  evidence. 

Loose  conduct  of  wife,  il>jd. 

Misconduct  of  husband,  ibid, 

2.  Action  for  harbouring  wife, 

Conduct  of  the  parties,  543. 
Representation  of  wife,  ibid. 

Sect.  HI. 

In  action  by  Parent  or  Master. 

1.  Seduction  or  other  assault. 

General  evidence  of  service,  544. 

Servant  a  witness,  ibid. 

Conduct  of  the  servant  or  plaintiff,  ibid. 

2.  Harbouring  apprentice  or  STvant, 

Knowledge  of  defendant,  545. 

CHAP.  xn. 

OF  THE  EVIDENCE  IN  CASES  OF    BANKRUPTCY, 

Who  are  witnesses,  vide  ante.  Part  I.  c.  3, 
s.  3,  Digest,  letter  (C.) 


Sect.  I, 


In  actions  by  and  against  the  Assignees. 

In  what  cases  assignees  must  prove  bank- 
ruptcy, 546.  550. 

Proof  of — trading,  547. 

Descrip'ion  in  commission,  548. 
Petitioning  creditoi-'s  clebt,  ibid. 
Where  an  executor,  ibid. 
Where  assignee  of  former  bank- 
rupt, ibid. 
Act  of  bankruptcy,  ^48. 

What   declaration    of  bankrupt 
evidence,  ibid. 
Dispensed  wiih. 

By  acts  of  the  parties,  549. 
By  not  giving  notice,  ibid. 

But  may  still  be  coniroverted,  ibid. 
Assignment,  548. 

Where  \n  assignee  has  been  re- 
moved, ibid. 
Bargain  and  sale,  550. 

Operates  only  from  enrolment,  ibid. 

Sect.  II. 
In  actions  by  and  against  the  Bankrxipt, 

1.  Action  by  bankrupt  against  messenger  or 

assignees,  550. 

2.  Action  against  bankrupt. 

Certificate,  550. 

Avoided  for  fraud,  &c.  551. 

by  proof  of  fictitious  debt, 

554. 
by  former  commission,  ibid, 
subsequent  promise,  555, 

CHAP.  xin. 

OF  THE  EVIDENCE  IN  ACTIONS  BY  AND  AGAINST 
AN  EXECUTOR  OR  ADMINISTRATOR. 

Sect.  I, 

In  actions  by  an    Executor  or  Admims~ 

trator. 
Proof  of  probate  or  administration,  when  ne- 
cessary, 557. 

How  proved,  557,  558. 
How  avoided,  ibid. 

Count,  stating    promise    to  executor^ 
when  necessary,  ibid. 

Sect.  II. 

In  actions  against  an  Execxitor  or  Admi- 
nistrator. 

1.  On  plea  of  ne  imques  executor,  559. 

Evidence  of  being  executor  de  son  tort, 
560. 

2.  On  ple7ie  admlnistravit , 

Plaintiff's  evidence, 

Possession  of  goods,  561. 
Laches  in  not  collecting  debts,  ibid. 
What  effects  deemed  assets,  ibid. 
Defertdant's  evidence, 

Payment  of  debts  of  equal  degree, 
and  funeral  charges,  562,  563. 
What  proof  required,  5G3. 


XVI 


TABLE  OF  CONTENTS. 


Effect  orjudgment'not  docketted,  562. 

565. 
Delivery  over  to  rightful   executor, 

5C3. 
But  not  to  co-executor,  ibid. 
Retainer,  564. 

3.  On  plea  of  specialty  debts,  outstanding. 

Plaintiff's  evidence, 

Judgmpnt  not  docketted,  ibid. 
Bond  for  less  sum,  ibid. 
AVhen   replication  per  frandum  ne- 
cessary, ibid. 

4.  In  an  action  suggesting  a  devastavit,  565- 

CHAP.  XIV. 

OF  THE  EVIDENCEIN  ACTIONS  BT  AND  AGAINST 
UEIUS  AND  DEVISEES. 

Sect.  I. 

Proof  of  Title  by  Heir. 

1.  Seisin  of  ancestor,  568. 

When  possession  not  evidence  of,  ibid. 

2.  Dfath  of  ancestor,  5~0. 

Presumption  as  to  death,  ibid. 

3.  His  own  relationship,  568. 

Reputation,  &c.  ibid. 

When  presumption  of  access  rebutted, 

571. 
Time  of  birth  of  posthumous  child,  572. 
Father  and  mother  witnesses,  ibid. 
When  their  declarations  are  evidence, 

573. 

Sect.  II. 

Prooj  of  Title  by  Dezisee. 

Provision  of  Statute  of  Frauds  as  to  wills, 
573. 

To  what  cases  it  extends,  ibid. 
Signing  by  the  testator,  574. 
Publication  hy  testatof,  575. 
Attestation  by  witness-  s,  ibid. 
Need  not  be  in  each  other's  presence, 
ibid. 
But  must  be  in  that  of  the  testator,  ibid. 

What  deemed  such,  576. 
And  they  must  all  attest  the  same  pa- 
per, 577. 

Wliht  deemed  such,  578. 
W'itnessesmust  be  credible,  5S1 . 
Formal  proof  of  will,  when  not  disputed, 
582. 

Sect.  III. 

Of  Evidence  by  the  Heir  to  defeat  tlie  Will, 
'  and  by  Devisee  to  sheio  republication. 

1.  Forgery,  583. 

2.  Insanity,  584. 

Observations  of  Lord  Thurlow  on  these 

cases,  586. 
Of  other  Judges,  ibid. 

3.  Revocation, 

Provision  of  the  Statute  of  Frauds,  588. 
By  a  new  will, 
Aluat  be  proved  as  such,  589. 


By  writing  not  beingitself  awiil,  589.- 
By  canct'lling, 

Must  be  done   ammo  revocandi, 
ibid 
And  the  act  completed,  590. 
LTnless  prevented  by  a  third 
person,  591. 
By  legal  implication, 

Subsequent  marriage,  and  birth  of 
child,  592. 

Qiiere,  If  parol  evidence  of  in- 
tention admissible  to  rebut 
presumption,  593. 
4.  Republication, 

Evidence  of,  ibid. 

Its  effect  on  lands  mentioned  in  the 
will,  and  those  subsequently  ac- 
quired, 594. 

Sect. IV. 

Of  the  Evidence  in  an  action  against  an 
Heir  or  Devisee  on  the  Specialty  of  his 
Ancestor  or  Testator. 

On  plea  of  nens  pei-  discent,  generally,  596. 

On  the  plea  of  riens'per  discent  at  commence- 
ment of  action,  598. 

In  action  against  heir  and  devisees  jointly. 
599. 

CHAP.  XV. 

OF  THE  EVIDENCE  VS  ACTIONS  AGAINST  OFTI- 
CERS  OF  JtJSTICE. 

Sect.  I. 

.Mgaiiist  SJieiiffs,  Bailiffs,  and  Gaolers. 

Against  bailiff,  600. 
Against  sheriff,  601. 
Proof  of  warrant,  ibid. 

Cases  in  which  secondary  evidence  ad- 
mitted, ibid. 
Proof  by  defendant  of  fraudulent  assign- 
m-::nt  to  protect  goods  against  exe- 
cution. 602. 
What  assignment  deemed  fraudulent. 
Statute  of  Elizabeth,  603. 
Cases  upon  it. 

Twine's  Case.  604. 
Cases  where  possession  of  grantor 
not  ounsidered  as  fraudulent,  ibid. 
Goods  purchnsi  li  with  the  mo- 
ney for  which  they  are  pledge 
ed,  ibid. 
Goods  purchasp'l  of  sheriff  un- 
der  execu'ion,  and   lent  to 
original  owi'i-,  ibid.  . 

Goods  puli'icly  bought  under 
assignment  f"'r  benefit  of  cre- 
ditors, and  so  lent,  605. 
Cases  of  fair  prefeience  if  one  cre- 
ditor, 606. 
1.  Action  Mgainst  sheriff  or  bailiff  for  extor- 
tion, ibid. 
2.  For  false  return  of  mesne  process. 
607. 


TABLE  OP  CONTENTS. 


xyu 


3.  Escape  on  mesne  process,  608. 

4.  False  return  nf fieri /arias,  610. 

5.  Escape  of  debtor  in  execution,  fill. 

Provisions  ot  the  Statutes.  612. 
Evidence  of  custody,  612,  013. 
of  escape,  613. 

Pleas,  and   evidence 
thereon,  ibid. 

6.  Taking  insufficient  sureties  in  re- 

plevin, 6l5. 

Provisions  of  the  Slalute,  ibid. 

Sheriff,  under-sheriff  and  re- 
plevin clerk,  all  liaMe,  ibid. 

Eitheravowsnt  or  person  mak- 
ing cognisance  may  maintain 
the  action,  ibid. 

Evidence  of  want  of  responsi- 
bility, ibid. 

To  what  extent  sheriff  liable, 
ibid. 

7.  For  selling   without    paying    the 

landlord's  rent,  616. 

Sect.  11. 

Jigainst  Justices,  Constables,  Parish  Offi- 
cers, and  Revenue  Officert. 

1.  The  Statutes  as  to  justices,  constables, 

and  parish  officers, 

21  Jac.  1,  action  to  he  in  proper  coun- 
ty, 617. 
7  Jac.  I,  the  whole  case  in  evidence 
on  general  issue,  ibid. 

42  Geo.  3,  extending  those  Statutes 

to  all  persons  holding  public  em- 
ployment, ibid. 
24  Geo.  2,  notice  to  be  given  to  jus- 
tice previous  to  the  commence- 
ment of  an  action,  ibid, 
and  warrant  demanded  of  constable 
618. 
Action  to  be  brought  within 
six  months,  ibid. 

43  Geo.  3,  in  actions  against  justices 

on  account  of  conviction  which 
has  been  quashed,  plaintiff  to  re- 
cover no  more  than  two  pence, 
unless  malice  and  want  of  pro- 
bable cause,  ibid. 

And  justice  may  prove  the 
offence,  619 

2.  Statutes  as  to  officers  of  excise  and  cus- 

toms, 

23  Geo.  3,?    g,q 

24  Geo.  3,5   ''*^- 

3.  Construciionof  the  several  Statutes, 

In  what  case  justice,  &c.  entitled  to  no- 
tice, 620,  621. 

In  what  cases  constable  entitled  to  de- 
mand of  warrant,  621. 

Action  against  him  limited  to  six  months 
in  all  cases,  622. 

And  may  always  be  answered  by  shew- 
ing he  has  delivered  copy  of  warrant 
before  action  brought,  618. 

The  form  of  notice  required,  622. 


Proof  of  action  being  commenced  within 
time,  623. 
4,  Defeii'laiii's  evidence, 
Plainiiffgiillty,  ibid. 
Conviction,  ibid. 

When  it  may  be  drawn  up,  ibid. 
Not  a  defence  if  tlie  justice  had  no 

jurisdiction,  623. 
In    cases  wiibin    Stat    43  Geo.  3, 
no  evidenc-- admitted  of  facts,  not 
in  proof  before  justices;  ami  he 
may  prove   the  evidence   before 
liini  to  shew  probable  cause,  018. 
622. 
This  Statute  extended  to  cases 
of  corporal  punishments,6l9. 
Tender  of  amends,  623. 

CHAP.  XVI. 

OF  TOE  EVinENCE  IX  ACTIONS  BY  ANH  AGAINST 
ECCLESIASTICAL  PERSONS. 

Sect.  I, 

In  actions  by  the  Patron  or  Parson  to  try 
the  Titie  to,  or  obtain  possession  oj  the 
Church. 

1 .  Quare  impecUt,  624. 

2.  Ejectment,  626. 

Sect.  II. 
In  actions  for  Tithes. 

1.  On  compositioti,  627. 

2.  On  Statute  of  Edw.  6,  for  not  setting  out, 

627. 

Value  to  entitle  plaintiff  to  costs,  ibid. 
Proof  of  plain'iff's  title,  ibid. 
Determination  of  composition,  628. 
Defendant's  evincic^  , 
Pro'if  of  modus,  630. 
Effect  of  documents  in  those  cases, 
ibid. 
Of  discharge  by  bull,  ibid. 

by  prescription,  ibid, 
by  composition  real,  631. 
by  order,  ibid. 
by    unify    of    possession, 

ibid, 
by  reason  of  barrenness, 
632. 

Sect.  III. 

In  the  action  for  Dilapidations,  632. 

Sect.  IV. 

In  the  action  for  JVon-residence. 

Statutes,  21  Hen,  8,633. 
2.5  Hen.  8,  ibid. 
33  Hen.  8,  634. 
43  Geo.  3,  ibid. 
48Gto.3,  638. 
57  Geo.  3,  634. 


xvm 


TABLE  OF  CONTENTS. 


Provisions  of. 

Time  of  absence,  634,  C35. 
Who  wjtliin  ihe  Statutes,  635. 
Place  of  residence,  ibid. 
License  of  absence,  636. 
Notice  of  action,  637. 
Payment  of  money  into  Court,  ibid. 
Proof  of  benefice,  ibid. 

of  absence,  ibid. 

Value  of  living,  ibid. 

License  to  absent  himself,  ibid. 

Exemption,  638. 

CHAP.  XVII. 

OF  THE  EyiDENCE  IS  COPYHOID  CASES. 

Admittance, 

Not  necessary  by  heir-at-law,  639. 
Nor  by  person  m  remainder,  ibid. 
But  devisee  must  prove  it,  ibid. 


A.nd  cannot  devise  without  it,  ibid. 
Surrender, 
In  case  of  will  now  unnecessary,  ibid. 
AVho  may  make  it,  ibid. 
Will  of  copyholder. 

Not  within  Statute  of  Frauds,  640. 
Any  writing  sufficient,  ibid. 
Proof  of,  641. 
Ejectment  by  lord  for  forfeiture,  641. 

pro  defectu  tenentis,  641 . 
Action  by  him  for  fine,  642. 
Proof  of  custom. 
Rolls  of  manor,  641. 
Books  of  steward,  ibid. 
Reputation,  ibid. 

That  lands  descend  to  the  eldest  female 

heir,  642. 
That  estates  tail  may  be  barred  by  sur- 
render, ibid. 


XIX 


TABLE   OF   CASES    CITED. 


A.BBOT  V.  Plumbe,  146.  547,  548. 
Abeiiey  v,  Dickenson,  137. 
Abrahams  v,  Bunn,  217.  261. 
Ackworth  v.  Kempe,  601. 
Adams  V.  Kerr,  152,  153. 

V.  Hcwett,  629. 
Addy  V.  Grix,  575. 

Adderley  v.  Hundred  of  OfRow  North,  463. 
Alban  v.  Priichet,  36, 
Alexander  v.  Comber,  322. 
V.  Gibson,  198. 
V.  Vl'Cawley,  608. 
Allen  V.  Diiiidas,  99. 
V.  Heber,  598. 
AUesbrook  v.  Roach,  156. 
Al[>assx)   Watkins,  378. 
Also  V.  Bowtrel,  572. 
Alsop  V.  E>  les,  614. 
V.  Price,  551. 
Alves  V.  Hodgson,  340, 
Aliham  V.  Eail  of  Anglesea,  185. 
Ambrose  v.  Clendon,  243,  547. 
Aniey  v.  Long,  281. 
Anderson  v.  Hay  man,  318. 
V.  May,  160.  401. 
V.  Hodgson,  387. 
Anscomb  v.  Sliore,  239. 
Ansell  V.  Waterhouse,  300. 
Antram  v.  Chace,  120. 
Argent  v.  Durrani,  505, 
Armory  v.  Delamirie,  498, 
Arundel  n  While,  112. 
Arundel's  (Lord)  Case,  26. 
AshcorOT)  7).  Hundred  of  Elthorn,  461, 
Ashpole's  Case,  459. 
Astlin  V.  Parkin,  537. 
Atcheson  V.  Everett,  208, 
Aiherfiold  v.  Beard,  138. 
Atkins  V.  HuKon,  133. 
Atkinson TJ.  Matteson,609. 
Attorney  General  v.  Barnes,  578.  594. 
V.  Bowman,  14. 
V.  Le  Ma.chant,  159. 
V.  Parker,  192. 
Aubert  v.  Mace,  393. 

V.  Walsh,  393, 
Averell  v.  Holmes,  447. 


Avison  V.  Lord  Kinnaird,  40. 
Auncelme  v.  Auncelme,  639. 


Badkinw,  Powell,  505. 
Baglehole  V.  Waters,  283. 
Bain  V.  Hargrave,  259. 
Brtker  v.  Lord  Fairfax,  89, 
Balcetti  v.  Seram,  155, 
Baldwin  v.  Cole,  497. 

V.  Trudge,  138, 
Ball  w,Bostock,  241. 

V.  Hundred  of  Wymersley,  460. 

V.  Sibbs,  396. 
Ballard  v.  Dyson,  493. 
Ballis  V.  Attorney  General,  189. 
Banbury  Peerage,  23.  95.  372. 
Bank  n\  England  v.  Morris,  565. 
Bannister  v.  Usborne,  395. 
Barker  v.  Dixie,  249. 
Baring  v.  Roy.  106. 
Barlow  V.  Vo'well,  233. 
Barnard  v.  Moss,  627. 
Barnes  v.  Messinger,  628. 
V.  Holloway,  470. 
V,  Trompowsky,  152. 
Barrow  v.  Humphrey,  280. 
Barry  v.  Bebbington,  26.  291. 
Bartlet  v.  Emery  435. 

V.  Pickersgill,  78.  217. 
BaskervillcTJ    Hundred  of  Agbridge,  459, 
Baston  v.  Bu'ter,  409. 
Bateman  v    Bailey,  547 

V.  Philip,  142.308.  326. 
Bates  V.  Jenkinson,  456. 
Bateson  v.  Hartsink,  553,  554. 
Bath  (Earl  of,)  v.  Battersea,  86. 

V.  Montague,  215. 
Bauerraanxi.  Rademus,  34.  39, 
Baynham  v.  Guy's  Hospital,  192, 
Bealey  v.  Shaw,  489. 
Beard  t).  Boulc  t,  391. 
Beardmore'u.  Sill,  499. 
Beasley  v.  Magrath,86. 
Beebee  v.  Parker,  642. 
Beckworth  v.  Wood,  463, 
Bedel  v.  Beard,  46 
Bell  V.  Harwood,  245, 


1-r 


XX 


TABLE  OF 


Benjamin  v.  Porteus,  240. 
KeniiHt  V.  Hun.tred  of  Hertford,  225. 
Benn^'it  v.  Alcott,  544. 
Benso"  V-  Olive,  89. 
V.  Port,  139. 
Benl-c'.  Baker,  23'2  234.  253. 
Bentley  v.  Cook,  2i9 

V.  Griffin,  388. 
Benton  v.  Emblers,  321. 

V.  Sutton,  613. 
B"rkcley  Peerage,  23. 
Bei  mon  v.  Woodbnflge,  8S. 
Beirington  v  P.rkhnrsi,  511, 
Be  rx  man  v.  Wise,  468. 
Bertie  v.  Bcaimiont,  156. 
Bt-i-ry  1'.  Banner,  75. 
Besfor  <I  t'.  Saunders,  555. 
Best  V.  Moruvia,  82. 

V.  Wii<liiig,  56. 
Bettison  v.  Biomley,  229.  235. 
Bexan  v.  Williams,  44.  637. 
Bibb  dein.  Mole  v.  Thomas,  592. 
Bickerdike  v.  Bollmaii,  343. 
Big^s  V.  Lawr  noe,  39. 
Bill  V.  Oakley,  620. 

Bin  h  V.  Bishop  of  Litchfield  and  Coventry, 
624. 

V.  Wright,  397.  535. 
Bird*.  Appleton.  108. 

V.  Blosse,  325. 

V  Hmid.  of  Ossulston,  461. 
Bird  V.  Barrow,  132, 133.  542. 

V.  Kershaw,  229.  240. 
Bishop  V.  Clucliest^-f,  628,  629. 
Black  V.  Smith,  432. 
Blackctt  V.  Lowr  s,  28.  47. 
Blaekhouse  v.  Middleton,  98. 
Bh-.ke  V.  Lawrence,  295. 
Bland  V    .\iisley,  246. 

V.  Swafibrd,  280, 
Blankley  v.  Wmstioiley,  192. 
Blach  V.  Archer,  601.  608.  610. 
Blatcher  v.  Kemp,  620. 
Bliss  r.  Palmer,  435. 
Blower  V.  Ketchrniirc,  98. 
Bloxhami).  H-ibhard,  299.  549. 
Bolton  1).  Gladstone,   106, 
Bonafous  -;).  Walk'-r,  614. 
Bond  V.  Seawel!,  579. 
Boot  V.  Wilson,  396. 
Booth  V   Charlton,  544. 
Bcottnnan  v.  Earl  of  Surrey,  613. 
Bordenave  ■!)  Gregory,  384. 
Bor'-hwick  v   CarnithP's,  434. 
Bothani  r.  Swin<;ler,  266. 
Boulion  V.  Pieniiss,  388. 
Bourdillon  v.  Dalton,447. 
Bi'.wcher  v.  Xoidstrom,  488. 
Bowles  7)    Langwoi-lhv,  146. 
Bi'Wraar>  V.  NiclioM   311. 
Bow<ihertJ.  Cully, 39 
Biiwyerw.  Bampton,  342, 

V.  Riv.-tt,  596. 
Bovdell  V.  Drncnmond,  .321,  325. 
Bradbury  v.  fJin.s.'ll,  493 
Doe   dem.  Bradford   (Lord)  v.   Walkins, 
528. 


Bradley  13.  Wyndham,  619. 
Brady  v.  Cubit,  186. 
Bramwellr.  Alt,  378. 
Brandram  v.  Wharton,  423. 
Brazier's  Case,  196. 
BredoD  V.  Harmaii,456. 
Brett  V.  Levett,  343.  547. 
Brettonr>.  Cope,  136.  146. 
Brewer  v.  Palmer,  398. 
Bridges  v.  Duke  of  Chandos,  46. 

V.  Francis,  401. 
Bridgraan  v.  Jennings,  134. 
Briggs  V.  Crick,  245. 

■V.  ETel>n,  621. 
Briod  V.  Bacon,  229. 
Bristow  V.  Wright,  288. 

•  V.  Hay  ward,  483. 
Brittain  v.  Kinnaird,  623. 
Brock  V.  Copelaml,  486. 
Brockmau's  Case,  86.  88. 
Bniderickl).  Broderick,  5S0. 
Bromley  v.  Wallace,  542. 
Bromwich's  Case,  94. 
B'ookbard  v.  Woodley,  155. 
Brooks  7>.  Mason,  401. 
Broom  v.  Davis,  408. 

V.  Robinson,  447. 
Broughlon  v.  Harper,  249. 
Biouuker  (Lord)  v.  Sir  R.  Atkyns,  75.  126. 
Brown  v.  Brown,  225. 

V.  Corporation  of  London,  239. 

V.  liortfjes,  499. 

•V.  M'Kinnally,  67. 

r.  Turner,  393. 

V.  Watts,  295. 
Brownson  v.  Avery,  240. 
Brunster  v.  Sewell,  144. 
Bryam  v  Booth,  98. 

-c\  Horseman,  423. 
Buchanan  v.  Rucker,  110. 
Bucher  v.  .Jarral,  160. 
Buckland  v.  Tankard,  247. 
Buckler  T).  Millerd,  178. 
Buckley  v.  Nighleng.ile,  596, 

V.  Taylor,  616. 
Buckmaster  -v.  Harrop,  324. 
Bucknal  v    Royston.  6O4. 
Budd  V.  Birkenhead,  423. 

7!.  R'lndall,  64. 
Buddie  T..  Wilson,  299. 
Bulford  V.  Broke,  S. 
Bullen  V.  MIuIkII,  134. 
Bullock  w  Dodds,  201.  ^ 

B'liitin'sCase,  11.'2. 
Burdon  v.  Browiiing,  78. 
Burdei.i  V.  Colman,  291. 
Burrows  v  Jt-mino,  101. 
Burleigh  T).  Stibbs,  140. 
Buriey  v.  Beihune,  618. 
Burns  f.  Mawson,  642. 
Burrows  v.  Wright,  462. 
Burton  v.  Burchall,  245. 

V.  Chatlerton.401. 

r.  Huide,  238. 
Burtonshaw  v.  Gilbert,  592.  59j. 
Busby  V  Grecnslaie,  245. 
Bush  V.  Rawlins,  246. 


CASES  CITED. 


XXI 


Butler  V.  Cooke,  243. 
Butcher  v.  Butch,  r,  1R8. 
BiKterfiel'l  v.  Forrester,  487. 
B'ltlon  t>  Piettiman,  21'J. 
Buxton  V.  B^del.  309. 
Bjne  V.  Moore,  481. 

C. 

Calonel  v.  Briggs,  .385. 
CnIcraftr.C;;hb'5,456. 
Call  (Bart.)  v.  DtmninEr,  146. 
Calliaud  v.  Champion,  294. 
Calvert  It.  Bowfl,  108. 
Colvin's  Case,  a06. 
Campbell  t).  Lewis,  443. 

V.  Wilson,  493  506. 
Canning  w.  Ni-wunn,  637. 
Cannon  v.  Brice,  393. 
Carlton  d.  Griffin  v.  Griffin,  578. 
Carlisle  (Mayor  of,)  v.  Blaiinire,  447. 

V.  Trears,  296. 
Carpenters  (Cotnijany  )xi.  Hayward,  239. 
Carter  v.  Mascot,  494. 
V.  Pearce,  246. 
V.  Thomas,  223. 
Cartwright  v.  Cartwright,  586. 
Carwick  v.  BlHgrave,  446. 
Cary  v.  Ask'  w,  640. 
V.  Garrish.  393. 
V.  Pitt,  154.  156. 
Cass  XI.  Cameron,  246. 
Cassoii  V.  Dade,  580. 
Castle  V.  Bambridge,  208. 

V.  Burdett,  619. 
Castling  V.  Aubert,  319. 
CasWfll  V.  Coare,  388. 
Gates  V.  Winter,  159. 
Cathcart  v.  Blackwood,  551. 
Catling  1).  Skoulding,  422. 
Cator  V.  Stokes,  82. 
Cazenore  v.  Vaughan,  97. 
Chambers  v.  Caulfield,  543. 
V.  Griffiths,  377. 
V.  Jones,  614. 
Champion  v  Plummer,  325. 
Chamire  v.  Clings,  538. 
Chandler  v.  Hundred  of  Sunning,  461. 

V.  Roberts,  112. 
Cha|ilin  v.  Rogers,  322. 
Chapman  v.  Cowlan,  133. 
T.  Gariinc r,  243. 
V.  Pointon,  280. 
Gharaund  v.  Aogerst'  in,  186. 
Chaterr-.  Becket,  319 

V.  Hawkins,  200. 
Chatlield  r  Fryer,  631. 
Chatlle  V    Pound,  164. 
CheLsea  W^ater  W'lrks  (Governor  and  Com. 

panv  of,)  V.  Cowper,  163. 
Chene'v's  Case,  179. 
Chiche'ster  v.  Philliiis,  99. 
Child  V.  Morle>  .  389. 
Chippingdale  v.  Bi  ii;den,  610. 
Christie  v,  Secretaii,  105. 
Christopher  v.  Christopher,  592. 
Clauncey's  Case,  200. 


Clarke  v.  Donovan,  401. 
1).  Gray,  297. 
V.  She'e,  240. 
V.  Smith,  598. 
V.  Bradshaw,  423. 
Clarkson  v.  Hanway,  194. 

V.  Wo'idhouse,  168. 
Clayton  v.  Andrews,  321. 

V.  Nelson,  478. 
Cleggv.  Levy,  110. 
Cle.k  V.  Bidford,  29. 
Cleverley  X'.  Br.:U,  561. 
Clewes  V   Biiihurst,  122. 
Clutterbuck  v.  Lord  Huntingtower,  240, 
Cobb  V.  Car,  223. 

V.  Stokes,  458. 
Cobilen  v.  Kenrick,  252. 
Cockerill  Ti  Chamberlain,  294. 
Coghlan  v.  Williamson,  152. 
Cohen  v.  Templer,  555. 
Coker'w.  Farewell,  90. 
Cole  V.  Blake,  432. 
V.  Parkin,  310. 
V.  Robins,  439. 
Coleman  v.  Winch,  598. 
Collins  V.  Jacobs,  294. 

V.  Nicholson,  401. 
Colsel  V.  Budd,  48. 
Coles  T^.  Bell,  433. 

V.  Treeoihick,  324. 
Compagnon  v.  Martin,  469. 
Compere  v.  Hicks,  537   539. 
Compton  V.  Richards,  490. 
Cooke  V.  Booth,  192. 
Conke'sCase,  401. 
Cooke  V.  Lloyd,  133. 

V.  Loxley,  45.  .399. 
V.  Ludlow,  387. 
V.  Slioll,80. 
Cooper  V.  Chitty,  610. 
V.  Elton, 323. 

V.  Hund,  of  Basingstoke,  459. 
V.  Marsden,30. 
V.  Smith,  125.300.  328. 
Cope  V.  Bedford,  135. 
Copeland  v.  Stevens,  396. 
Coppin  V.  Carter,  455. 
Corbet's  Case,  5Gl. 
Corbet  V.  Poelnilz,  437. 
Cork  V.  Baker,  320. 

Corporation  of  Lon<Ion  (Case  of,)  220.  237. 
Corson  X).  Dubois,  555. 
CoteS  V.  Haris,  422. 
Cowell  V.  Edwards,  391. 
Co  wen  V.  Abrahams,  160. 
Cragg  V.  Norfolk,  164. 
Craneh  v.  Kirkman,  422. 
Cripps  X).  Durden,  623. 
Ci  itchlow  X!.  Parry,  342. 
C'ockcr's  Case,  2*4. 
Crollx;.  P.<ulet,582. 
Croke  V.  Dowling,  462. 
Cromack  v.  Heathcote,  261. 
Crompton  v.  .Min-.hull,  530. 
Crosby  v.  Percy,  153. 

V.  Wa<lsworth,  320. 
Crosse  v.  Smith,  563. 


XXll 


TABLE  OF 


CunlifTe  and  Wife  v.  Sefton,  148. 
Cunliff  7>.  Taylor,  129. 
Curry  v.  Ede'nsor,  309. 

V.  Walter,  477. 
Curteis  v.  Fitzpatrick,  4S. 
Curtis  V.  Vernon,  563. 

V.  Hall,  148. 
Cutting  V.  Darby,  458.  530. 

D. 

DacOsta  v.  Atkins,  538. 

V.  Pym,  154.  156. 
V.  Villa  Real,  122. 
Dale  v.  Sollet,  4l5- 
Daniel  V.  Hill,  40. 

V.  North,  493. 
V.  Pitt,  21. 
V.  Wilson,  620. 
Danstey  v.  Westhouse,  241. 
Dartmouth  (La<ly)  -v.  Roberts,  40.  85.  629. 
Darwin  v,  Upton,  489. 
Davi'S  V.  Dinwoody,  250. 
v.  Pearce,  20. 
V.  Williams,  310.  559. 
Davy  V.  Smith,  580. 
Dawe  V.  Holds\vorth,414, 
Deacon  v.  Cooke,  238. 
Deal  V.  Harding,  241. 
Dean  ami  Chapter  of  Ely  v.  Warreu,  291 
De  Gftillon  V.  L'Aigle,  437. 
De  Milton  V.  De  Mellc,  45. 
Den.  detn.  Alston  v.  Waine,  529. 
Goodwin  V.  Spray,  1.33. 
Tarzwell  v.  Barnard,  47. 
Taylor  t).  Lord  Abmgton,  53G. 
Drrby  (Earl  of)  v.  I'aylor,  447. 
Deway  v.  Baynton,  605. 
Willan  T.  Walker,  529. 
Denham  v.  Stephenson,  596. 
Di-risley  v.  Nevil,!;05. 
Dibdtn  V.  Swan,  477. 
Dickenson  and  Wife  ■!:;.  Davis,  S4I. 
V.  Coward,  549. 
V.  Shea,  432. 
Dickson  v.  Fisher,  56. 
Digby  V.  Stedman,  30. 
D'lsraeli  V.  Jowiti,  124. 
Dixon  V.  Cooper,  240. 
Dod.!r.  Kyffii),505. 
Dodd's  (Dr.)  Case,  244.  304. 
Doe  V.  Calvert,  529. 
V.  Jesson,  570. 
V.  Parker,  446. 
Doe  dena.  Banning  v.  G'iffith,  S'fi, 
V.  Griffiths,  570. 
Beach  v.  Lord  Jersey,  184. 
Bingham  v.  Cartwrighi,  528. 
Birch  V.  Phillips,  532. 
BoweriTian  v.  Sybourne,  85.  523. 
Bradford  (Lord)  v.  Watkins,  52S, 

529. 
Brand  v.  Brown,  183. 

V.  Gre.nihg,  182. 
Bromfield  f.  Smith.  399. 
Brislowe  v.  Ptgge,  S'iS. 
Burdeiti).  Wright,  523. 


Doe  dem.  Chevalier  v.  Bulthwaite,  181. 
Chichester  v.  Oxendon,  182. 
Clarke  v.  Grant,  528. 
Glun  (Bailiff,  &c.  of.)  v.  Clarke, 

525. 
Cooke  V.  Danvers,  179.  512.  640. 
Cooksont).  Thorpe,  121. 
Cnore  v.  Clare,  399. 
Da  Costa  v.  Atkins,  539. 

V.  Waton,  536,  597. 
Copley  (Bart.)  v.  Day,  310. 
Didsbury  v.  Thomas,  28. 
Dowding  V.  Blissell,  399. 
Duckett  V.  Watts,  512. 
Durour  v.  Jones,  518. 
Esdale  V.  Mitchell,  550. 
Fisher  V.  Prosser,  517. 
Forster  v.  Williams,  232, 
Foster  v.  Sisson,  642. 

■V.  Wandlass,  533. 
Freeland  v.  Burt,  180. 
G-^orge  V.  Jcsson,  517. 
Gigner  v.  Roe,  519. 
Goodwin  v.  Spray,  133.  642. 
Graham  v.  Scott,  623.  626. 
Heapy  v.  Howard,  529. 
Hillings  V.  Bird,  517. 
■    Hodson  V.  Staple,  523, 
Howell  V.  Lloyd,  164.  523. 
Jackson  v.  Ramsbottom,  525. 
Johnson  v.  Earl  Pembroke,  24. 
Jones  V.  Wylde,  232. 
Jupp  V.  Andrews,  251, 
Knight  V.  Smith,  525. 
Laf^^cashirex;.  Lancashire,  186. 592 
Leicester  v.  Biggs,  528. 
Mason  v.  Mason,  133. 
Maittiewson  v.  Wnghtman,  529, 
Mawson  v.  Liston,  550. 
Morris  v.  Roper,  113. 
Parkes  v.  Parkes,  591, 
Palmer  v.  Tomkins,  639. 
Passingham  v,  Lloyd,  133. 
Powell  V.  Harcourt,  128. 
Puddicomb  v.  Hairis,  528. 
Putlanii  V.  Hilder,  523. 
Re-^s  V.  Robson,  30. 
Scholefield  V.  Alexander,  532. 
Small  V.  Allen,  194. 
Smelt  V.  Fuchan,  532. 
Smith  V.  Smith,  640. 
Stephenson  -v.  Walker,  12. 
Strickland  -v.  Spence,  528. 
SykeSjbart.T'.  Durntord,  146.  530. 
Tarrant  v.  Hellier,  639.  641. 
Tofi.  Id  rv  Tofield,  639. 
Tyrrell  v.  Lyfoi-d,  178. 
Vernon  v.  Vernon,  639. 
Webbei  V.  Ld.  G.  Thynne,  26 
White  V.  Cuff,  520. 
Wdliarast;.  Humphreys,  531 

r:  Pssquali,  550. 
Wood  V.  Morris.  398 
Woodmass  V.  M:ison,  110. 
Woorabell  V.  Baker,  529. 
Douglass  V.  Yallop,  60. 
Dowues  V.  Moremanj  135. 


CASES  CITED. 


XXUl 


Drake  v.  Smith,  630. 

V.  Sykes,  COl. 
Draper  v.  Glossnp,  453. 
Drewry  v.  Twiss,  '293. 
Drummond's  Case,  33. 
Drummond  v.  Dorant,  490, 
Du  Karre  v.  Livette,251. 
Driffield  v.  Onell,  629. 
Duffinr.  Smith,  251. 
Duncan  v.  Scott,  fi2. 
Dunn  V.  Peel ,  544. 

V.  White,  539. 
Dunlop  V.  Waugh,  382. 
Durston  v.  Tuth'an,  290. 
Dutton  f .  Cnli,  207. 

V  Solomonson,  387, 

E. 

Earl  V.  Lewis,  134. 

Earl  dem.  Goodwin  v.  Baxter,  47. 

.Easton  v.  Jacques,  447. 

East  India  Company  v.  Gosling, 242. 

Eccleston  r'.  Petty  alias  Speke,  85.  580, 

Edmondson  v.  -Machal,  544. 

r.  Stephenson,  477. 
Edwards  v.  Cooke,  542. 

V.  Evans,  246. 

V.  Dick,  341,  342. 

V.  Harbin,  560.  604. 

V.  Vesey,  137. 
Egerton  v.  Matthews,  326. 
Egg  V.  Bai-net,  412. 
Eggieston  v.  Speke,  589. 
Elden  r.  Keddel,  559. 
Eldridger.  Knott,  48. 
Elliott  V.  Duke  of  Norfolk,  614, 
V.  Edwards,  378. 
V.  Rogers,  395. 
Ellis  t).  Smith,  575.589. 
Elnioie  V.  Stone,  322. 
Elsam  V.  Faucet,  13. 

Ely  (Dean  and  Chapter  of,)  v.  Warren,  291 . 
Emerson  v.  Blendon,  39. 

V.  Heelis,  309.  320.  324. 
England  dem.  Syburne  v.  Slade,  399.  523, 

524. 
Etheringtonr,  Parrot,  288. 
Ethersey  v.  Jackson,  450. 
Evans  V.  Brar.den.  616. 
V.  Man,  550 
V.  Williams,  240. 
Evelyn  (Si\'  Fn-d.)  v.  Haynes,  72. 
Ewing  V.  Peters,  567. 
E,\all  V.  Partriilge,  389. 


Fabian  v.  AVinston,  533. 

Farhina  v.  Sabine,  206. 

Faiiclainid    Eiupton  t<.  Sliackleton,  517. 

Fail  lie  V.  Hastings,  40. 

Farebro'her  v.  Aiisley,  398. 

Fitrnsworth  v.  Garrand,  409. 

Fassrt  t;    Brown,  148. 

Favence  v.  Bentiet,  412. 

Fawcet  V.  B'-avrcs,  545. 

Fellv.  Wilson,  628, 


Feltham  v.  Terry,  620. 

Fenney  dem,  Eastham  v  Child,  399. 

Fenwick's  (Sir  John)  Case,  90. 

FerrarsTj.  Arden,  70. 

Ferrar's  Case,  70.  72. 

Field  V.  Curtis,  243. 

Fielder  T).  Starkin,  383. 

Filraer  v.  Gott,  194. 

Finch  V.  Lamb,  426. 

Finchet  V.  How,  401, 

Finnerty  v.  Tipper,  478. 

Fisher  v.  Lane,  112. 

V.  Samuda,  409. 

V.  Cuthell,  530. 
Fitch  V.  Sutton,  410. 
Fitchetw.  Adams,  511. 
Fitzgerald  v.  Eustace,  164. 

V.  E!sce,  148. 
Fletcher  v.  Wilkins,  620, 
Flower  v.  Adam,  487. 

V.  Herbert,  243. 
Fonsick  V   Agar,  91. 
Focus  V.  Salisbury,  5il. 
FolkesT.  Chad,  179. 
Forbes  *.  Lord  Middleton,  426. 

V.  Wale,  48.  163. 
Ford  V.  Fothergill,  435. 

V.  Grey,  f64.  5U  518. 
V.  Maxwell,  401. 
Fores  r.  Wilson,  544,  545. 
Fosset  V.  Franklin,  6,32. 
Foster  v.  Allison,  394. 

V.  Bonner,  56. 
Fotheringham  v.  Greenwood,  232 
Fowler  v.  Down,  499. 
Fox  V.  Lushington,  241. 
Francisco  T).  Gilmore,  92. 
Frazer  v.  Hopkins,  195. 
Freeman  v.  Philips,  23.  95, 
French  v.  Backhouse,  246. 
V.  Patten,  311. 
V.  Fulston,  246. 
Frith  V.  Gray,  293. 
•  Fuller  w.  Jackson,  241. 

V.  Prest,610. 
Fullon  V.  Fotch,  80. 
Furber  r.  Andrews,  400. 
Furley  v.  Newnham,  281. 
Furneaux  x'.  Hutchins,  291 . 


Gahagan's  Case,  20. 
Gale  V.  Walsh,  342. 
Ganer  v.  Lady  Lanesbro'  542, 
Gapex'Handley,  192. 
Garrels  v.  Kensington,  105. 
Garret  v.  Lister,  559. 
G;irion  v   Galbraith,  356. 
Gawer  v.  James,  426. 
Gea  V.  Lethbridgp,  616. 
Gerard  XJ.  Roebeck,  294. 
Gibbon  V.  Coggan,  608. 
Gibson  V.  Hunter,  5. 

V.  M'Carty,  76. 

V.  Spurrier,  377. 
Giles*,  Halt,  4.?2. 
Girlingtoii  v.  Pitficld,481. 


XXIV 


TABLE  OF 


Glazebrook  v.  Woodrow,  376.  379. 
Glascot  V.  Day,  432. 
GIossop  -u.  Pole,  131, 
GnddanI  v.  Cox,  414. 
Godfrey  -o.  Norris.  153. 
Gndin  v.  Ferris,  622. 
Goodacre  r.  Breame,  228.  245, 
Goodier  v.  Lake,  140. 
Goodison  v.  Niinii,  374. 
Goodland  v.  Blewitt,  432, 
Goodright  d.  Carter  v.  Cordwent,  530. 
Faro  V.  Hicks,  12. 
Glazin  v.  Glazin,  595. 
Hare  v.  Cater,  311 
St»vens  V.  Moss,  256. 
Thompson  v.  Saol,  571. 
Walter  "v.  Davids,  533. 
Goodtitle  d.  Alexanr^er  t".  C'ayton.  582. 

Eastwickr  r.  Way,  311.  398. 
Forbes  x.  Wtlford,  234,  239, 
Holford  -v.  Otway,  186.  594. 
King  T'.  Wooilw'ard,  458.  530. 
Lu.xn)poi-e  i;  Saville,  159. 
Jones  T.  Jones,  523. 
Eadfor/liy.  Southern,  184. 
Revet  -v.  Braham,  8.  156. 
Woodhouse  -v.  Meredith,  594. 
Gordons  Harper  497. 

V,  Secretan,  161. 
Gorton  V.  Dvson,  559. 
Gossr.  Tracy,  153.  229. 
Govett  V.  Radnidge,  .301. 
Gough  -o.  Howard,  400. 
Gould  V.  Johnson,  420. 

T'.  Jones,  154. 
Graftv.  Lord  Brownlow  Bertie,  155. 
Graham  v.  Huiid.  of  Beacontree,  461. 
Granger  v.  Furlong,  243. 
Grant  i).  Jackson,  86. 
Gray  v.  Cookson,  623. 
Grayson  v.  Atkinson,  575. 
Green's  Case,  461. 
Green  t'.  Brown,  351. 
v.  Hewitt,  129. 

t'.  Jones,  243.  • 

•u.  New  River  Company,  241. 
V.  Parker.  435. 
V.  Rennetj  289. 
Grellierr'   Neale,  148. 
Griffin  ■».  Blandford,  290. 
Griffith  V.  Squire,  401. 
Griffiths  V,  Young,  322, 
Grillard  v.  Hogue.  92. 
Grimaldi  v.  White,  306.  406,  408, 
Grimwood  v.  Barrett,  290. 
Groinvolt  v.  Burrel,  137. 
Groome  v.  Forrester,  623. 
Groos  V.  Tracey,  229. 
Groves  V.  Buck,  521. 
Gryle  V.  Gryle,  575.  576. 
Guest  V.  Lloyd,  472. 
Gully's  Case,  200. 
Gurinls  -o.  Erhart,  178, 
Gunstone  v,  Downes,215, 
Gutteridge  r   Smith,  296. 
Gwilliam  v.  Barker,  616. 
Gyftbrd  v.  Woodgatej  82. 


H. 

Habershon  t>.  T/obv,  482. 
Hale^.  Small.  548. 
Halier  v.  Hund.  of  Benhurst,  45!. 
Halifax's  (Lord)  Case, 
Hall  Tj.  C.izenove,  170, 
V.  Hil!,  36. 
•u.  Vaiifhan,  397. 
Halletw.  Mears,  281. 
Halle«ell  V.  Trappps.  629, 
Hummerslev  v.  Knowlvs.  415, 
Hammond  w.  Steward, 2€0. 
Hands  V.  James,  582. 
V.  Slane>,  435. 
Hanson  n.  Parker,  34. 

V.  Stephenson,  448, 
V.  Tomlin.  .397. 
Hardidgew.  Gibhs.  628. 
Hardwell  v.  Jarman,  igg. 
Hardy  v  Bern.  450. 

V.  Cathcarf,  634, 
Hare  v.  Cator,  446. 
Harris  v.  Htmtbach,  393. 
V.  .Tames,  551. 
V.  Morris,  388. 
V.  Tippett,  204. 
V.  Woolford,  456, 
Harrison's  Case,  94. 
Harrison  v.  Harrison.  575. 
Hart  V.  M'N  raara,  80. 
Harwood  v.  Sim,  26. 
Hassclden  v.  Bradney,  46. 
Hasting's  Case,  198. 
H»fch  V    Blisset.  282. 
Hatherway  v.  Brown.  78. 
Haveiockv  Rockwood,  108. 
Hawke  v   Bacon.  492. 
Hawkins  v.  Perkins.  260. 
V.  Plomer,  613. 
T.  Rutt,  412. 
Haycraft  v  Creasy.  485. 
Havnes  v.  Wood,  386. 
Headslev  v.  Rnssel,  561, 
Heath  v.  Hall.  243. 
Heckscher  v.  Gregory,  384. 
Hi'dger  V.  Roe,  598. 
Heller  v.  Toke,  6l9. 
Henchett  v.  Kimpson,  616. 
Hnndy  v.  Stephenson,  506. 
Henkel  v.  Broruley,  310. 
Hennel  v.  Lyon,  88. 
Henry  v.  Adey,  109. 
Henspy's  Case,  154. 
Henshaw  v   Pleasance,  180.  622. 
Herbert's  Case,  596. 
Herbert  v  Ashl-urter,  137. 

T.  Cooke.  112. 
Hereford  (Bishop  of,)  v.  Duke  of  Bridgewa- 

ter,  138. 
Hervey  v.  Dowson,  477. 
Hervey'g  Case,  121. 
Hevling  V.  Hastings,  422. 
Hickey  v.  Ha\ter,  563. 
Higham  v.  Ridgwa^ ,  30. 
Hill  T.  Bateman,  623, 
V,  Fleming,  227, 


CASES  CITED. 


XXV 


Hill  V.  Humphreys,  401. 

V,  Li'igh.COl. 

V.  She.  iff  of  Middlesex,  601. 

V.  Watben,  501. 
Hillvar.)  \.  GiHt.tham,  76. 
Hindal  V.  Blades,  f.l5. 
Hiritle  V.  Whitt-hous.  ,  323. 
Hitchin  V.  Camphell,  70. 
Hoare  v.  Croylon,  547. 
Hobson  V  Piiikei ,  138. 

V.  Tod.l,  494. 
Hodges  V.  W>ndham,  542. 
Hudgk.nso..  V.  Mai'sdcn,  450. 
H-'il  V.  Cieik,  589. 
Holbii-d  V.  And.  rsoii,  606. 
Holciolt  V.  Heel,  490. 
HoUUast  dera.  Ai.biey  v.  Downing,  639. 
Wfinlam  V.  Claphara,  639. 
Holford  V.  Hati  h,  446. 
Holland  V.  Hopkins,  295. 
V   Palm.  I-,  551. 
Holmes  V.  Poiitii.,  152.  399. 
Helf  V.  Bmn,  388. 
Holy  land  (ex  parte,)  586. 
Hopewell  V.  l)e  Pinna,  437. 
Hopkms  V    Neal,229   246. 
Huinev.  Lord  B.niinek,  137. 
Hoskins  V.  Kn)s;lil,  616. 
How  V.  Hall,  160. 
Howard  (Lord)  v.  Bill,  220. 
Howard  v.  Castle,  378. 

V.  Siiipli  v,246. 
Howe  V.  Paltner,  323. 
Hudson  V.  Kersey,  581. 
Hughes  V.  Morle'y,  551.  553. 

V.  Dolben,  599. 
Hume  V.  Peploe,  433. 
Hunt  V.  Ai.drews,  125.  456. 
V.  Briilgewatt  r,  294. 
V.  Sc^Aer.s,  558. 

V.  Silk,  379. 
Hunter  V.  Britt,  539. 

V.  Kint;,218   244. 
Hutchinson's  Case,  lOl. 
Huiehitis  V.  Piper,  456. 
HuxhamT   Smith,  432. 
Hyde  v.  H)de, 591. 

V,  Cogau,  463. 


Jackson  v.  Fairbank,423. 

V.  Hu'ldock,  592. 
Jacob  V.  Lii'dsay,  278. 
Jansoii  V.  Wilson,  96. 
Jacques  V.  Whitcoml),607. 
Janet  v.  Leonard,  547. 
Jayne  v.  Piice,  569. 
Jee  V.  Hoekley,  t)30. 
Jeffery  v.  Bar-ow,  598. 
Jekvil  V.  Sir  T   Moore,  477. 
Jclpsv.  Ballard,  555. 
Jenkins  v.  PritcliMrd.  512. 

V.  Reynolds,  326. 

V.  Turner,  486. 
Jennings  v.  Hankey,  224. 
Jervis  v.  Hayes,  241. 
Jewdwine  v.  Slade,  382. 


IgguUlen  V.May,  192. 
Ildi  rion  V.  Atkinson,  240. 
Illingwoithv.  Leigh.  27.  134, 
Incli'doii  V.  B.  rry,  4H1. 
John  V.  Fothergill,  239. 
Johnson  v.  Browninj;,  223. 
V.  M'A'I'im,  544. 
V.  Ma|>letoii,433. 
V.  Mason.  1 46. 
V.  Smith,  56. 
Jones  V.  Beikley ,  376. 

V.  Bow,  122. 

V.  Brook,  229. 240. 

V.  Brown,  544. 

V.  Coop.-r,  318. 

V.  Hund.  of  Bromley,  461. 

V.  Lake,  575. 

V.  Len:ivids,fi32. 

V.  Mi'.son,  153. 

V.  Newman,  179. 

V.  Perrv,487. 

V.  Pope,  452. 

V.  Randall,  60.  62.  84. 

V.  Vaoghan,  618. 

V   White,  130. 

dem.  Griffiths  v.  Marsh,  529, 
Jordaine  v.  Lashbrook,  255. 
Jory  V.  Orchard,  160. 
Ireland  v.  Powell,  27,  28. 
Irvin  V   Dearman,  544. 
Irving  V.  Wilson,  620. 

K. 

Kabi  V.  Jansem,  40. 

Kannen  v.  Vl'MuUen,  402,  403. 

Keech  d.  Warne  v.  Hall,  536. 

Keeling  V.  Ball,  146. 

Kempland  v.   Vl'Cauley,  610. 

Kempton  V.Cross,  99   110. 

Ken.  bel  V.  Scrafion,  592. 

Ketinet  V.  Green wollers,  243. 

K.M.u's  Case,  115.  122. 

K-  osiogton  V.  Chaotler,  294. 

K'-nt  V.  Huskinson,  325. 

Ktrsh^w  V.  Cox,  310 

Ki.'d  V  RawlinsoiA,  605. 

K.llins^toii  (Vicar  of,)  v.  Tr.  Coll.  129. 

K.il'i*  V.  Rodi  n,  597. 

Kii.aston  v.  Clarke,  597. 

King  V.  Meredith,  387. 

■   V.Woodward,  530. 
The  King  V.  Abergwillv,  94. 

y.  Abiugd.in  (Lord)  378, 

▼.  Aickles,  124. 

▼.  Alnion,  473.  477. 

V.  Azire,  248. 

V.  Baob,  1,39. 

V.  B  11,208. 

V    B   llrii.i^er,  192, 

T.  B.  rrv,  470. 

V.  Bl-ckmore,  224. 

V.  Bolioo  with  llairowgate,  62, 

V.  Bos>OM.78.2l7.  40,i, 

V.  BraN,2ir. 

V.  Biai.,le<,2.i6. 

V.  Brougl.teii,  217. 

V.  Brown,  139, 


XXVI 


lABLE  UF 


The  King  v.  Kurbage.  2S1. 

V.  Burclett(SirF.)477, 

V.  Carpenter,  287. 

V.  CaiT,  86. 

V.  Castle  Bambridge,  208. 

V.  Castle  Careinion,  202. 

V.  Castlpmain  (Lord,)  201. 

V.  Castle  Morton,  142. 

V.  Castleton,  145. 

V.  Cater,  157. 

V.  Clarke,  456. 

V.  Cliveger,  149. 

V.  Cole,  225. 

V.  Cornelius,  139. 

V.  Creevey,  378. 

V.  Crosby,  200. 

V.  Dal  by,  217. 

V.  Dalton,  161. 

V.  De  Caux,  616. 

V.  Dingier,  93. 

"v.  Edwards,  201. 

y.  Ellis,  216,  217. 

V.  Eriswell,  27.  94. 

V.  Erith,  25. 

V.  Ferry  Frystone,  94, 

^.  Fletcher,  225. 

V.  Ford,  200. 

V.  Fox,  2.33. 

V.  Frederick  and  Tracy,  247. 

V.  Gardner,  208. 

f.  Gibson,  123. 

V.  Gilham,  207. 

V.  Gisburn,  266. 

V.  Gordon  (Lord  Geo.)  8k 

V.  Grimes,  123. 

'^.  Grundon,  122. 

V.  Gwin,  150. 

V.  Hammersmith,  26. 

V.  Hartlwick,  34. 

V.  Hart,  477. 

V.  Head,  132. 

V.  Hemming  and  Windham,  93. 

V.  Heydon,  1.39. 

V.  Hollister,  138. 

T.  Holt,  124. 

V.  Hopper,  550. 

V.  Hoslman  (Fraternity  of,)  138, 

V.  Johnson,  144.  225. 

V.  Kea,  257- 

V.  Kdle'-bv,238. 

V.  Kirdford,  238. 

V.  Laindon,  191. 

V.  Lambert,  477. 

V.  Lee,  1,39. 

V.  Little  Lumley,  238. 

T.  London  (.Mayor, &c.  of,)  237. 

V.  L'lcas,  138. 

T.  Luffe,  577. 

V.  Maids'one,  572. 

V.  Mai  y  Magdalen,  219 

V.  S" .  Mary  Nottingham,  257, 23S 

V.  Merton,  145. 

V.  Middlezny,  161. 

\.  Moise,  246. 

V.  Morris,  88. 

V.  Mothersell,  133. 

V.  Ncathersealj  99. 


The  King  v.  Newland,  244. 

V.  Nuneham  Courtney,  94. 

V.  Nunez,  246. 

V.  Oakhampton  (Mayor and  Bur 
gesses  of,)  239. 

V.  Osborne,  192. 

V.  Paine,  93. 

V.  Pancras,75. 

V.  Parr,  244. 

V.  Pearce,  473. 

V.  Peltier,  477. 

V.  Pendleton,  307. 

T.  St.  Peter,  256. 

V,  Phdlips  and  Archer,  25'j 

T,  Priddle,  200. 

V.  Prosser,  238. 

T.  Purefov,  94. 

V.  Purnel',  139. 

y.  Radbourne,  91. 

V.  Ravenstone,94. 

V.  Reading,  257. 

T.  Retrves,  84. 

V.  Rhodrs,  244. 

V.  Robins,  239. 

V.  Rodham,  281. 

V.  Russel,  244. 

V.  Ryton,  164. 

V.  Scamraonrten,  188. 

V.  Sponsoiibv,  244. 

T.  StockdaU',  84. 

T.  Stockland,  256. 

V.  StoHe,  455. 

V.  Sutton,  124, 

V.  Taylor,  197.  206,  244. 

▼.Teal,  201.  204. 

V.  Te«sdale,225. 

▼.  Thornton,  244. 

V.  Tilly,  224. 

V.  Topham,  473. 

V.  Travers,  196. 

V.Turner,  203. 

V.  Twining,  10.  571. 

V.  Usher,  244. 

V.  Varlo,  192. 

▼.  Vincent,  123. 

V.  Warden  of  the  Fleet,  246. 

V.  Warminster,  94. 

V.  Warwickshall,  43. 

V.  Westbeer,  93. 

V.  White, 206. 

V.  Whiting,  77.  216.  217. 

V.  Whitley  'Lower,)  34. 

V.  Wilts,  227. 

V.  Withers,  124. 

V.  Woburn.  34.  261. 

V.  Wright,  477. 

V.  Wych,  208. 
Kingston's  (Duchess  of,)  Case, 253. 
Kingston  V.  Grey,  563. 

V.Phelps,  115.  117. 

upon  Hull  (Mayor  of,)  V.  Horner. 

46. 
Kinnersley  v.  Orpe,  61.  75. 
Kinsman  v.  Crooke,  89. 
Kirk  V.French,  478.  482. 
Kirtland  v.  Pounsett,  397. 
Knibbs  V.  Hall,  67. 


CASES  CITED. 


XXVll 


Knight  V.  Danler,  60. 
Knill  V.  Williaras,  311. 
Kiiohel  V.  Fullpp,  478. 
Rnowles  v.  Michel,  394. 
Koopes  V.  Chapman,  243. 
Kynaston  v,  Clarke,  628. 


Laing  ▼.  Raine,  146. 

Lake  v.  Hund  of  Croydon,  461. 

V.  Lake,  185. 
Lambert  v.  Pack,  342. 
Lancashire  v.  Lancashire,  592. 
Lane  v.  Anderson,  125. 

V.  Degberg,  81. 
Langdon  v.  Hull,  159.  342. 
Langhorne  v.  Alnutt,  40. 
Langston  v.  Cotton,  381. 
Lara  V.  Bird,  434 
Larkin  v.  Larkin,  591. 
Laroehe  v.  Wakeinan,  499. 
Latkow  V.  Earner,  131. 
Laughton  V.  Ward,  493. 
Law  V.  Wills,  398 
L-iwri-nce  v.  Worral,  423. 
Lawson  v.  Copeland,  562. 
Lea  V.  Libb,  578. 
Leader  v.  Barry,  436. 
Lemper  v.  Tatton,  423. 
Lechmere  v.  Toplady,  70. 
Lee  V.  Gansel,  201. 
V.  Huson,  470. 
v.  Lopes,  616. 
V.  Muggeridge,  437. 
V.  Rogers,  453. 
Leech  v.  Bailey,  629. 
Leeds  V.  Cooke,  145. 
Leggatt  V.  Tollervy,  480. 
Leigh  V.  Hewit,400 
Leglisle  v.  Champante,  299. 
Legi'osse  V.  Leveraore,  26. 
Leicester  (Lonl)  v.  Walter,  478. 
Lf  iglilon  V.  Leighton,  56. 
Lerna)  ne  v.  Stanley,  574.  577. 
Lemopf-  V.  D'^^ars,  148. 
Leonard  v.  Bakf  r,  605. 
Lewis  V.  Clargt  s,  71. 

V.  Cosgrave,  409. 

V.  Foi;,241. 

V.  Piercv,  553. 

V.  Price,'  489 
Lightfoot  V.  Cameron,  282. 
Liirds^  y  V.  L.ndsey,  524. 
Lion  V.  Lamb.  326. 
Lloyd  V  Harris,  482. 

V.  L'  e,  437 

V.  Mn'ind,  423. 

V.Williams,  227. 
Lockyer  v.  Jones  432. 
Lomas  v.Novosdienski,  411. 
Lomax  v.  Hwlmden,  572. 
Lon'cin  (city  of,)  v.  Clarke,  75. 
Longf  inl  V.  Eyre,  582. 
Lord  V  Tuck,  631. 
Lovat's  (Lord)  Case,  261. 
Lovelace  V.  Curry,  621. 
Lowden  v.  Goodrich,  505. 


Lowe  V.  Jolliffe,  148.  229.  255.  582. 
Lowther  v.  Radnor  (Earl  of,)  623. 
Lugg  V.  l.ngg,  593. 
Lundie  V    Robertson,  343. 
Luttrel  V.  Caiy,  89. 

M. 

Maberley  v.  Robins,  378. 
M'Arthur  v.  Lord  Seaforth,  385. 
M'Clure  V.  M'Keand,  294. 
M'Dougall  V.  Claridge,  477. 
Macferson  v.  I'hoytes,  155. 
AIach.-l  V.  Temple,  580. 
Mackenzie  v.  Banks,  310. 
Maelellan  v.  Howard,  429. 
M'Manus  v.  Cricket,  488. 
M'Neil  V.  Perchard,  601. 
Maddox  V.  Miller,  435. 
Maloney  v.  Bartley,  259. 
Mahhy  v.  Christie,  386. 
Manby  v.  Curtis,  156. 

V.  Scott,  387. 
Manchester  Mills  (Case  of,)  98. 
Mansfield  (Lord)  v.  Clarke,  629. 
Maiiwaring  v.  Sands,  388. 
Marriage  v.  Laurence,  135. 
Marriott  v.  Hampton,  06. 
Marsden  v.  Gray,  297. 
Marshal  v.  Ruttan,  437. 
Marsh  V.  Colnet,  384. 
Martin  v.  Bell,  601. 

V.  Drayton.  217. 

V.  Goble,  490. 

V.  H(nTel,240. 

V.  Po^iger,  603. 

V.  Savage,  594. 

V.  Slade,  6U7. 

V.  Wiiidrr,  402. 
Masoc  V.  Pidcliaid,  319. 
Massey  v.  Jotinson,  619.  622,  623. 
Mailiews  v.  Lee,  598. 
Matson  V.  \Vharara,316. 
M.itlliews  V.  Ptiillips,  426. 
Maud  V.Howell,  606. 
MiUgham  V.  Walker,  456. 
Max  V.  Roberts,  301. 
Maxwell  v.  Jameson,  390. 
May  V.  Gwynne,  139. 

V.  May,  131. 
May  hew  v.  Locke,  621. 
Mayne  v.  Walter,  108. 
Ma;  or  oi  Southampton  v.  Graves,  138'. 
Mead  v.  Dauaigny,  470. 
V.  Norbury,  629. 
V.  Robiasoii,  246. 
Mearsfif.id  v.  Via.  sh,  557,  558. 
Mv-ath  (Bishop  of,)  v.  Lord  Belfield,  189. 
Mtchtli  V.  ito'.i.:  ts,  134 
Mee  V.  R..cd,  207. 
Mi-ers  V.  Lm-d  Stourton,  21, 
Megtjo'.  V.  VIdis,  414. 
MelUsh  V.  Aiiuiitt,  297. 

V.  Motteaux,  383. 
M'  Iville  V.  Kayd..,,,  319. 
M'  iMile's  (Lord)  Case,  260. 
Mercier  v.  Wise,  530. 


XXYlll 


TABLE  OF 


M>  r>  iliih  V.  Gilpin,  238. 

Mer.  t  »    Harvey,  505. 

aieile  V.  Wills',  319. 

MeiT)  weather  v.  Nixon,  398, 

Mersey  and  Irweil  Nav.  Corap.  v,  Douglas, 

292. 
Mitlii.el  V.  Sn.)ckwiih,443. 
Mitiiel  V.  All  s(ree,  487. 
]Mi<i(lleU)n  V.  Brewer,  298. 
Mililniay  v.  Mil<)n)M_v,'J9. 
Mil'Iront-'s  Case,  -Zof. 
Milf-s  V.  Dawson,  179. 

V  Kose,  72. 
Miller  V.  Forsler,  134. 

V.  Heinnck,  110. 
V.  Towcis,  401. 
Mills  v.Am-i'il.  396. 

V  I},  iiiieti,  549. 
Millwoo.l  V   Walt.'r,  295. 
Miiiori  V.  Grteii,  620. 
MiiiL'l{ix  parli,)  326. 
Miltii>ll  V.  Walk.  1,629. 
M.MSi's  V.  Tliorton,  110.  407. 
Moil  V.  Adam,  281. 
Money  v.  Leach,  620. 
Mo.k^  V.  Bi.lkr,  d'iS. 
Monroe  V.  Twislt  ton,  248. 
]Moilg')niern-  v.  ClarkL,  81. 
Mo  .dy  V.  Tliurstoii,  138. 
Moore  V   Blak.  ,510. 

V.  Foley ,  192. 

V.  Hart,  325. 

V.Hill,  394. 

V.  Pyrke,  390. 
Moravia  v.  L<  vy ,  ^94. 
Morelanil  v.  Btnnet,  451. 
Alortwood  V.  Wood,  156. 
Morgan  v.  Ambrosi',  395.  399, 

V.  I{ridg<  s,  601. 
Morgan's  Case,  206 
Morris  v.Mdlt-r,  131.541. 

V.  >,<)itolk,37. 

V.  Pugh,  56. 
Morrison  v.  Kf  II)  ,  479. 
Motion  V.  L<mli,  378. 
Moses  T.  Mclarlaii,  68.  . 

V.  Noiris,6lO. 
Mossam  v.  Ivy,  127. 
Moonstr|>heii  v.  Bro(jke,  422. 
Mowljray  v.  Fleming,  401, 
Mulgravf  V.  ()j;d''n,  497. 
My  lion  V.  Harris,  G30. 

N. 

Naish  V.  Tailock,  396. 
iN.ish  V.  E'lu.unds,  640,  641. 

V  Molins,  630. 

Tf  ■  sham  V.  Armstrong,  463. 
Kew  ^.  Chidgcy,  246. 
!N   why  V.  R-  ad,  351. 
Ki\  v"  Culling,  247. 
Ko.l  V.Wills,  99. 
N'"Coi  V.  Cioot, 243. 
1^1. rd  n  V.  l\vibill  et  al.  219. 
North  V.  Mult  s,  39. 
.^Nurwoud  V.  Stevenson,  340. 


Northwick  (Lord)  v.  Stanway,  642. 
New-Marsh  v.  Chiy,  414. 

O. 

Gates  dem.  Wigfall  v.  Brydon,   11.  519. 
Oddy  V.  Bovd,  108. 
Oin'  V.  Gwi.i,  60. 
Oliver  V   Lawrence,  208. 
Oniicliun<l  V.  Barker,  205,  206. 
O'Neil  v.  Maiso'i,  614. 
Onyoiis  V.  'I'yrer,  589. 
Ortord  (May  orot,)  v.  Richardson,  494. 
Ornl  V.   vjaddnx,  512. 
OsUourne  v.  Gough,  622. 
V.  Harper,  391. 
Outram  v.  MorewooiJ,  26.  71. 
Owen  \    Wooley,  423. 
Owtnson  V.  Morse,  412. 
Oxendon  v.  Ptnrice,  235. 
Uxlade  V.  Pereliard,  243. 


Padget  V   Priest,  560. 
Page's  Case,  57. 
Page  V.  Earner,  615. 
Paiitoii  V.  Jones,  396. 
Pariente  v.  Plumplree,  610. 
Paris's  Case,  216. 
Park  V.  Mears,  148. 
Parker  v.  Aifield,  565. 
V.  H!)skiiis,  153. 
V.  Saniland,  320. 
Parsons  v.  Crosbv,  245. 

V.  King,  456. 
Parlon  V.  W'llliaiiis,  64. 
Pasley  v.  Freeman,  485. 
Passwell  V.  Godsall,  161. 
Patrick  V.  (ireenway,  494. 
Payler  v.  Homersham,  168. 
Payne  v.  Shndboli,  380. 

V.  Whale,  383. 
Peaceable  ilem.  llornblower  v.  Read,  512. 

517, 
Peacock's  Case,  90. 
Peacock  v.  Hliodes,  342. 
Peake'sCase,  401. 
Pearce  v    Hooper,  161. 
Pearson  v.  Fletcher,  555. 

V.  llenrv ,  561. 

\.  Isles,"  280. 
Peaselie's  Case,  559. 
Peale  v.  Origley,  576. 
Pedeison  v.  Siotfles,  232. 
Peeram  v.  Palmer,  379. 
Pendoek  d.  Mackinder  v.  Mackioder,  193 

200.  581. 
Pendrel  v.  Pendrcl,  571.  573. 
Penphrase  v.  Lord  Lansdown,  578. 
Pesliall  v.  Layton  and  Marshall,  607 
Peterboro'  Bridge  (Case  of,)  127. 
P  lers  v.  Anderson,  414. 
Petit  v.  Addiiigton,  505. 
Pttiir  V.  Haunay,  .393. 
Phillips  V.  Astliiio,  319. 

v.  B  con,  289. 

V.  Bury,  122. 


CASES  CITED. 


XXIX 


Phillip*  V.  Sculthorpe,  309. 
Philp  V.  Squire,  38.  543. 
Philpol  V.  Wnlk-i,3'20. 
Phipps  V.  Packer,  148. 
Pickering  v.  Dawson,  383. 
Pickersgill  v.  Palmer,  622. 
Piikstock  V.  Lvstcr,  COG. 
Piercy  V.  Sir  T.  Jones,  97. 
Pig  't's  Cast",  441 . 
Pik    V.  Crouch,  74. 
PindiT  V    ^^^adswol•lh,  494. 
P  nt  V.  Doi ,  497. 
Pirie  v.  Anderson ,  346. 
Pitman  ».  Maddox,  29. 
Pitton  V.  Walter,  80. 
Plant  V.  Anderson,  610. 
Pleasant  dem.  Ha}  ton  v.  Benson,  529. 
Pluiikeit  V.  P.  fison,  597.  599. 
Podger's  Case,  511. 
Pollard  V.Bell,  108. 
V    Scott,  134. 
Pope  V.  Forster,  289. 
P.^rer  v.  Hnnd.  ot  Ragland,  223. 
Porihoiise  v.  Parker,  343- 
Postlewaite  v.  Gibson,  621. 
Potlierick  v.  Tuiner,  40. 
Pothonier  v   Dawson,  497. 
Piiter  V.  Raworth,  343. 
Potts  V.  Durant,  134. 
Powell V.  Edmunds,  178. 
V.  Hr.rd,  241. 
V.  Lav  ton,  300. 
V.  Little,  211. 
\.  Milbank,  46.  627. 
Powley  V.  Walker,  400. 
Poynton  v.  Forster,  482. 
Preston  v.  Merceau,  190. 
Price  V.  Hund.  of  Chewton,  462. 

V.  Littlewood,  26. 

\.  Messenger,  621. 

V.  Woodburne,  295. 
Pricket  (ex  parte,)  401. 
Prince  v.  Blackburn,  153,  154. 
Pritt  V.  Fairclough,  130. 
Prudham  v.  Phdlips,  123. 
Puckle  V.  Moore,  420. 
Purcell  V.  Macnamara,  289.  481. 
Putton  V.  Purbeck,  536. 

Q. 

Quantock  v.  England,  453. 
Queen  (The)  v.  Muscot,  19. 
Queen's  Case,  14.  207.270,271,272,273, 
274,  275,  276,  277, 278, 279. 

R. 

Radford  v.  Briggs,  44. 

V.  M'lntosh,  45. 
Ramsboitom  v.  Buckland,  531. 

V.  Morley,  311. 

V.  Tunbridge,  311. 
Randall  v.  Blackbuine,  i34. 
Rands  V.  Thomas,  204. 
Rankin  v.  Horner,  550. 
Raicliffe  and  Chaplin's  Case,  642. 
Ration's  Case,  196. 
Ravee  v.  Farmer,  170. 


Raven  v.  Dunning,  226. 
Raynes  v.  Towj^ood,  260. 

V.  Spicer,  260. 
Rawson  v.  Johnson,  378,  379. 
Rea  V.  Elkms,  82. 
Read  v.  Allen,  641. 

V.  Brookmaii,  145, 

V.  Nash,  320. 

V.  Sowerby,  554. 
Read's  (Sir  Tbos.)  Case,  135, 
Reading  v.  Rawslerne,  516.  59S, 
Reddie  v.  Scoolt,  545. 
Redpath  V.  Roberts,  399. 
Redshaw  v.  Hester,  598. 
Reed  v.  Brookman,  506. 
V.  Goldihg,  432. 
V.  Jackson,  75. 
V.  Passer,  133. 
Rees  V.  Robson,  30. 
Reid  V.  Clarke,  462. 
Regina  v.  Mead,  139. 
R^)ner  v.  Pearson,  40. 
Rlioiles  V.  Ainswortli,  239. 
Ribbaus  V.  Critketl,  297. 
Rice  V.  Shute,  299. 
Rich  V.  Topping,  256. 
Richards  v  Acton,  615. 
Richardson  v.  Atkinson,  110.  497, 

V.  Williams,  75. 
Rickson  v.  Sandford,  241. 
Ridley  v.  Taylor,  229. 
Right  d.  Caior  v.  Puce,  574.  580. 
d.  Fisher  V.  Cuthell,  458.  530. 
d.  Flower  V.  Darliy,  527. 
Rippener  v.  Wright,  Iti.  306. 
Roberts  v.  Fortuue,  80. 
V.  MalsLuii,  13. 
Robertson  v   French,  345. 
Robinson  v.  Davies,  l40. 

V.  Drybrough,  311. 
Robson  V.  Calzi  ,551. 
V.  Eaton,  411. 
V.  Hall,  31U. 
V.  Towiiey,310. 
Roch  V.  Rix,  97,  98. 
Roe  d.  Brtbee  v.  Paiker,  133.  642. 

d.  Bennett  V.  Jetfi  ry ,  642. 

d.  Brown  v.  Wilkinson,  527. 

d.  Brune  v.  Rnwlius,  156. 

d.  Clarges  v.  Foster,  528. 

d.  Connelly  v.  Vernon,  184. 

d.  Cosh  V.  Lovli  ss,  639. 

d.  Gilman  v.  Ucynoe,  574. 

d.  Gregson  v.  Han  ison,  593. 

d.  Henderson  v.  Charnock,  527 

d.  Jackson  V.  Ashbuiner,  399. 

d.  J  fFe.  eys  V.  Hicks,  639. 

d.  J  ihnsoii  V.Ireland,  46. 

d.  Lanj;don  v.  Rowlsiiin,518, 

d.  P'-  latt  V.  Ferrars,  86. 

d.  R-  .ide  V.  Reade,  524. 

d    I'horpe  v    Loi'd,  570. 

d.  W-  st  V.  DAvies,  140. 

V.  H)sla  ,d,  570. 

V.  Popham,  183. 

V.  Wiggs,  5'29. 
Rogers  v.  Allen,  168, 


XXX 


TABLE  OF 


Rogers  v.  Clifton,  478. 

V.  Pitcher,  525. 
Rolfe  V.  Dort,  58. 
Rolles  V.  Rosi-welt,  450. 
Rondeau  v.  Wjatt,  321.  322. 
Robs  \.  Johnson,  499. 
Rothciam  v.  Fanshaw,  629. 
Rotheroe  v.  Elton,  240. 
Routledge  v.  Thornton,  120. 
Rowcrott  V.  Basset,  240. 
Rowa  V.  Young,  341. 
Rucker  v.  H:itii'.iy,  423. 
RucJfl's  Case,  204  216. 
Ruiiincy  V.  Evts,  639. 
Rush  worth  V.  Countess  of  Pembroke,  74.  94. 
Rubsel  V.  Boheiue,  345. 

V.  Rusfel,  243. 
Riistil  V.  Macquister,  470. 
Ration's  Case,  196. 


Sackvill  V.  Brown,  640. 

Sadli  I 's  Compnnv  v.  Jones,  2S9. 

Saint  John's  Coileve  \    Murcox,  616. 

Salisbury's  (Lord)  Case,  641. 

SaL.p  (County  of,)  v.  Comty  of  Stafford,  238 

Salo  ''an  v.  Gordon,  62'2. 

Saloucci  V.  Johnson,  107. 

V.  Woodraas,  107. 
Salfe  V.  Thomas,  195. 
Sanderson  v.  Bakei ,  601 . 

V.  Jackson,  325. 

V.  JuHge,  342. 

V.  X'chiil,  563. 
Sandy  v.  Custom  House  OflScers,  220. 
Sant'.erv.  H.>ard,  293.  295. 
Sarol  V.  Wine,  558. 
Saunders  v.  Darling,  615. 
Sa\age  V.  Smith.  607. 
Savitle  V.  Roberts,  481. 
Sawyer  v.  Mercer,  562. 
Schneider  v.  Heath,  383. 
V.  Norris,  325, 
Scholey  v   WaUhy  ,  343. 
Scott  V.  Loi  (I  Oxford,  470. 
V.  Nt  Ison,  435. 
V.  Sh.  arman.  79.  622. 
Searlc*    K.-exe-*,  323. 

V.  Lord  Bar'-  nglon,  51. 
Seddon  v.  Tutop,  69. 
Selhv  V.  H:iiris.  62. 
Stiwin  V    Ral.Iy,628. 
Sendjll's  C^ise,  459. 
Sevvaid  V.  W!ll>ck,378. 
Sev.iif  ui's  (Sir  Edw.)  Casn,  592. 
Shaftesbury  (Lord)  v.  Lord  Digby,  21. 
Shaw  V.  Markhara.  159.  342. 
Sheers  v.  Glasscock.  580. 
Shelley's  Case,  562. 
Shepherd  v.  Johnson,  385. 

V  Shephird,  592. 
Sherwin  v.  Clarg;es,71. 
Short  V    M'Carthy,  422. 
Shnri  d.  Gastrell  v.  Smith,  589. 
Shrt-^^sbur^  v.  H'md.  of  AslOD,  459. 
Shuie  V.  Hijjden,  625. 
Shuttlewonh  V.  Bravo,  243. 


Simmonds  v.  Parminter,  343. 

Simon  V.  M'.:.  OS,  319.  321,  322,  323. 

Skelton  v.  Ha* ling,  567. 

Skiiiiierv.  Upshaw,  499, 

Slack  V,  Buchannrin,  43. 

SI  nin  V.  Home,  608. 

Sm^illcomi)  \.  Bucki'igham,  604.  610. 

Smartle  v.  Williams,  30.  166. 

Smith  V.  Allisor,,  542. 

V.  Angel,  596,  597. 

V.  Bower, 425. 

V.  Chester,  341. 

V.  Codroii,  575. 

V.  Uavies,  38.  562, 

V.  Evans,  575. 

V.  Gordon,  88. 

V.  Lyon,  34. 

V.  Parkhiirst,  512. 

V.  Pelah,487. 

V.  Piomer,  497. 

V.  Prager,  217. 

V.  Rumniins,  78, 

V.  RusseL  616. 

V.  Taylor,  468. 

•v.Tliaichtr,341. 

V.  VeaU',  98. 

V.  Wilshire,  621. 

V.  Woodward,  439. 
Smithson's  (Sir  Hugh)  Case,  63. 
Snow  d.  Ciawlt-v  v.  Phihps,  626, 
Snow  V.  Phillips,  86. 
Snowden  v.  Smiin,  478. 
Somerset  (Uuke  ot,)  v.  France,  291. 
Sorbin  V.  De  Burgh,  621. 
Southampton  (.Mayor  of,)  v.  Graves.  138. 
Soulsby  V.  Neving,  458. 
Spai  in  V.  Dra.x,  88. 
Sparke's  Case,  253. 
Spence  v.  Siuarl,  281. 
Spencely  v  De  Wdlot,  203, 

V.  Scliulenberg,  253. 
Spencer  v.  Gculuing,  223. 
Spilt}  V.  Bowens,24l, 
Spong  V.  Fasting,  241 . 
Spurrier  v.  Elderton,  390. 
Spybey  v.  Hide,  433. 
Stadt  V.  Liil,  326. 
Stainer  v.  Droilwich,  126. 
Slandi;n  V.  Standen,  256. 
Stanl<-y  V.  White,  '.^91. 
Stansheld  v.  Jolmson,  324. 
Slanwa>  v.  Perry,  456, 
Staples' V.  Okiiies,  228. 
Stead  V.  Heaton,  26, 
Steele  V.  Rooke,  564.  599. 
Steers  v.  Lashley,  393. 
Stevens  v.  Moss,  22. 

V.  Walker,  219. 
Stephenson  v.  Nevinson,  239.    ■ 
Stevenson  v.  Jones,  259. 
Stokes  v.  Berry,  513. 

V.  Lewis,  389. 
Stone  V.  Evans,  447. 
Stonehoiise  v.  Evelyn,  576. 
Story  V.  Atkins,  393. 
Stieet  V.  Marquis  of  Blandford,  543. 
Strickland  v,  Spence,  528. 


CASES  CITED. 


XXXl 


Strickland  v.  Ward,  122,  621.  623. 
Stuart  V.  Rowland,   394. 
Stubbing  v.  Hein'z,  388. 
Sumner  V.  Brailv,550. 
Swan  V.  Se well,  423. 
Swinnerton  v.WGioildard,  109. 

V.  Marq.  ot  Stafford,  134. 
Swire  V.  Bell,  149. 
Sykes  v.  Diuibar,  481. 
Symonds  v.  Knight,  549. 


Tabert  v.  Tipper,  477. 
Talbot  V.  Hoflsnn,  96.  148. 

V.  ViUeboys,  138. 
Tannery.  T'^ylor,  278, 
Tnpp  V.  Lee,  485. 

Tashmaker  v.  Hund.  of  Edmonton,  459. 
Taylor's  Case,  244. 
Taylor  v.  Cole,  23.  85. 
V.  Fenwii-k,  G21. 
V.  Higgins,  390. 
T.  d.  Alkins  V.  Horde,  510. 
Tealby  v.  Gascoigne,  601. 
Tempest  v.  Linley,  608. 

V.  Rawling,  399,  400. 
Templer  v.  M'Lachlan,  409. 
Terry  v.  Huntingdon,  80. 
Thanet  (Lord)  v.  Patterson,  99. 
Thatcher  and  Wallace's  Case,  94. 
Thomas  v.  Thwnas,  179. 
Thompson  v.  Bird,  241. 

V.  Harvey,  389. 
V.  Jones,  161. 
V.  Miles,  374.  378. 
Thornton  v.  Royal  Exch.  Assur.  279. 
Throgmorton  v.  Ws,lton,  570. 
Thrupp  V.  Fielder,  435. 
Thurtel  V.  Hund.  of  Mulford,  464. 
Thynne  v.  Protheroe,  557. 
Tilly's  Case,  89. 
Tinckler  v.  Walpole,  125. 
Title  V.  Grfvett,  259. 
Titner  v.  Titner,  592. 
Todd  V.  Stokes,  389. 
Tooker  V.  Duke  of  Beaufort,  128. 
Tooms  V.  Painter,  450. 
Torrington's  (Lord)  Case,  29. 
Tower  V.  Cameron,  551. 
Towers  v.  Barret,  283. 

V.  Osborne,  321. 
Townend  v.  Dawson,  246. 
Treacher  v.  Hinton,  341. 
Trelawney  v,  Coleman,  542, 
V.  Thomas,  245, 
Trethewy  v.  Ackland,  555. 
Trimmer  v.  Jackson,  575. 
Truman  V.  Hurst,  435.  j 

V.  F.Dion, 423. 
Tummins  ».  Rnwlison,  457. 
Turner  v.  Crisp,  51. 
V.  Evl<;s,  612. 
V.  Pearte,  263. 
V.  Richardson,  447. 
Tutter  V.  Inhabitants  of  Dacorum,460. 
Twinne'8Case,6Ui. 


Tyrwhitt  v.  Wynne,  291, 
Tyte  V.  Jones,  341. 

V. 

Vaughan  v.  Barnes,  66. 

Vealc  V.  Bayle,  386. 

Venning  v  Leckie,  309.  389. 

Vicars  Choral  of  Litchfield  v.  Ayres,  184. 

Vicars  V.  W  ilcocks,  472. 

Vicary's  Case,  85. 

Vincent  v.  Stay  maker,  401. 

Voocht  V  Wynch,  491. 

Vowles  V.  Young,  22. 

Underwood  v.  Parks,  478. 

Upsdel  V.Stuart,  356. 

W. 

Waddingtnn  v.  Bristow,  309. 
Wade  V.  Beasley,  295. 
Wadhara  v.  Marlow,  396. 
Wadsworth  v.  Hamshaw,251. 
Wain  V.  Warlters,  326. 
Wnlford  V.  Duchess  de  Pienne,  437, 
Walker  v.  Constable,  324. 
V.  Reeves,  447. 
V.  Walker,  243. 
V.  Whitter,  101. 
Wallis  V.  Alpine,  481. 

V.  Delancy,  153, 154. 
V.  Wallis,  575. 
Walpole  (Lord)  v.  Earl  of  Cholmondeley 

181. 
Walter  v.  Shelley,  253. 
Ward  V.  Hay  don,  225. 
Walton  V.  Phillips,  592. 
Waidel  V.  Feiraor,  153. 
Warnford  v  Warnford,  575. 
Warner  V.  Theobald,  452. 
Warr  v.  Huntley,  389. 
Warren  v.  Corset,  452. 
Warren  d.  Webb  v.  Grenville,  .30, 
Warrington  v.  Furber,  309. 
Warwick  v.  Collins,  632. 
V.  Noakes,  412. 
Washington  v.  Brymer,  51. 
Watkins  v.  Towers,  295. 
Watson  V.  Sutton,  613. 

V.  Threlkeld,44. 
V.  Turner.  320. 
Watt's  Case,  216.  218. 
Weal  V.  King,  301. 
Weatherstone  v.  Hawkins,  477, 
Webb  V.  Fox,  499 

V.  Heme,  482.  608. 
V.  Matthew,  610. 
Webbe  v.  Maddocks,  310. 
Weeden  v.  Timbr'l,  542. 
We.ksv.  Sparke,28.  493. 
Welch  V.  Richards,  137. 
Weller  v.  Governors  of  Foundling  Hospila!. 

219. 
Wells  V.  Watling,  494. 
Wellsford  V.  Beazley,  325. 
Westby's  Case,  612. 
Westerdale  v.  Dale,  417. 


xxxu 


TABLE  OF  CASES  CITED, 


Wtslfalino  v.  WeslfaJing,  599. 
Wesilake  V.  CoUaid,  43.' 
Weston  V.  FniH-nier,  6'22. 
Wftherhallz.   Hall,  456. 
Whately  V.  M  r.hipm,74 
Whitchurch  *.  Wliitchurch,  574. 
Wbilcomi't-  V.  VV  hiling,  423. 
While  V.  Driver,  586. 

V.  Htiwkins,  5  i5. 
Whitehead  v.  Clifford,  399. 

V.  May,  182. 
Whitlock  V.  Baker,  22. 
Whitiiallt'  Gaviham,  192. 
Whiltiiighan.  r   Hill,  435. 
Whitwjck  V.  Hiivenden,426. 
Wh'tworth  %<   Hiind.  of  Grimshoe,  460, 
Whvwall  f    Chamfiioii,  435. 
Wi-'ks  V.  Smallbio.ike,  201. 
AVigley  V.  Jones,  612 
Wilborne  v.  Dewsbiirj,  562. 
Wild  V.  Hornb%,491. 
Wilkes  V  Atkin«oii,  376,  385, 

V.  Jacks,  343 
Wilkinson  v.  Collej,  457.  458. 
13.  Lutwidge,  341. 
V.  M'Cauley,  616. 
Williams  v.  Burgess,  622. 
V.  Dyde,  555. 
V.  East  India  Company,  9, 
V.  Fritb,  402. 
V.  Hulie,  270. 
V.  Innes,  21. 
V.  .lohiison,  250, 
V.  Leper.  319. 
V  Williams,  97. 
Williarasonr.  Allison,  288, 
Willaume  v.  Gorges,  50. 
Willis  TJ.  Peckhani,  281. 
"Wills's  Case,  244. 
Wilmot  V  Horion,  463. 
Wilson  V.  Gary,  246. 

V  HdgHS,  570. 

V.  Kemp,  555. 

V.  Milner,  398. 

V.  Page,  493.  v 

w.  Rastel,250,  251', 


Wilson  V.  Redman,  631. 

V.  Rogers,  137. 

V.  Witheib\,  524. 
Winch- ster's  (Bishop  of,)  Case,  630. 
Winchester's  (Maiquis  of  )  Case,  595. 
Wirulham  v.  Chetwynd,  234. 
Winsmore  v.  Greenbank,  38,  542.  543. 
Winter  "V.  Payne,  4<)1. 
Wogan  V.  SomervlUe,  469. 
Wood  V.  Braddork.  40. 

V.  Folliolt,  622. 

V.  Newton,  433. 
Wood  and  Chivers'  Case,  533. 
Woodbriilge  V.  Spooner,  178. 
Woodcock's  Case,  31 
Woodgate  V.  Knati-hb'dl,  607. 
Woodnoth  V.  Lord  Cobham,  27. 
Woolston  V.  Scott.  542. 
Worrall  V.  Han.l,  562. 
Wright  r.  Read,  432. 
V  Smith,  259. 
Wright  dem.  Civ  men  7;  Littler,  198.  255. 
Wmtteslev  v.  Beudish,  85. 
Wyburd  v.  Tuck,  628. 
Wyndham  v.  Lord  Wycorab,  542, 


Yabslev  v.  Doble,  39. 

Yate  V.  Wdlan,  297.  ^ 

Yates  t(.  Boon,  438. 

V.  Freckleton,  411.     * 

V.  Harris,  134. 
Y<'a  V.  Fouraker,  423. 
Yeweii'sCwse,  204. 
York  V.  Blott,  247. 
Yorke  r.  Greenaugh,  499. 
Young  V.  Bairner,'228  245. 
T».  Holmes,  140. 
V.  Wright,  36. 


Zenobio  v.  Axtd,  477. 
Znuch  dem.  Ward  v.  Willingale,  536, 
■    '    ■  V.  Moore,  478. 


TABLE  OF  CASES 


OP 


AMERICAN    DECISIONS. 


Abbot  V,  Sebor,  224.  268.  362. 365. 
Abbot  V.  Broome,  356.  358  362. 
Abeel  el  al  v.  Railcliffe,  324  399. 
Abel  V.  Abel,  504. 
Abel  V.  Beiinet,  611. 
Abrabara  et  al.  v.  Matthews,  51. 
Adams  v.  Brownscm,  11. 
Bayles,  115. 
Barnes,  255. 
Wv lie,  418. 
Kellogg,  584. 
Spear,  290. 
Heinmenway,  503. 
Adams  et  at.  v.  Hemmenwaj,  465. 
Addleman  t.  Way,  503. 
Administrator  of  Porter  v.  Kenny,  36. 
Administrator  of  Price  v.  Administrator  of 

Talman,  175, 
Agan  V.  M'Manus,  332. 
Ainsworih  et  al.  v.  Allen,  479. 
Ainsworih  v.  Dyer,  298. 
Aitkins  v.  Smith,  100. 
Akerly  v  Haines,  545. 
Albee  V.  Ward,  169.  614. 
Albright  V.  Pickle,  502. 
Aldrich  v.  Albea,  429. 
Allaire  v.  Ouland,  287,  288. 
Alexander  v.  Byron,  2. 
Gf)uld,  35. 
et  al   V.  Jamieson  et  al.  152. 
T,  Coulter  et  al.  141. 

Baltimore,  Insurance  Compa- 
ny, 351.  361. 
Mahon,  228. 
administrator  v  Fink,  436. 
T.  Herbert,  538. 
Allane  V.  Ouland,  315. 
Allen  V.  Jordan,  266. 

Hall  etal.  132. 
Hall.  132. 
Halkins,  213. 
Horinn,  417. 
Maguire,  419. 
Brace,  293. 
Allen,  581. 
Allison  V.  Gregory,  609. 

4  X 


Ailing  V.  Munson,  314. 
Allis  V.  Be.-dle,  566. 
Allison  V.  Mjt'hiew,  II. 
Al()in  V.  Robertson,  307. 
Alston  V.  Taylor,  51. 
Alsop  V.  Goodwin,  173. 

Todd,  435 
Alwiii  V.  Ulraer,  264. 
Amraonett  v.   Harris,  .300. 
Amory  v.  F^llowes,  580,  581. 
Flyn,  495. 
Gil  man,  365. 
The  Fillowes,  269, 
Anderson  v.  Fox,  615. 
Hayes.  41. 
et  al  V   Fox  et  al   258. 
V.  Haves,  306, 
D  rb>  el  al.  309 
Andrews  v.  MoMigomery,  102.  450. 
lessee  V.  Fleming,  26. 
V.  Care,  41 . 

Herri'ig,  73. 
et  ux,  V.  Hooper,  141. 
et  al.  V,  Solomnns  ei  al.  252. 
V.  Andrews,  278. 

Vandecozen,  473. 
et  al  V.  K.^ppe nhnafer,  468. 
et  ux.  V.  Koppeiihealer,  466.  468. 
Andres  v.  Wi  lis,  475. 
Angel  V.  Fi'lton,  19. 
Filton,  541. 
Anstey  v,  D  wsing,  234,  235. 
Anscomb  v.  Sli')re,  239. 
Ai'pbtnn  V,  Bojd,  41. 
Appleton  V.  Growninshield,  373. 
A|.pl -by  V.  Clark,  611. 
Aicher  v.  Sadl'  r,  52. 
Archfi-  V.  Colly  et  nx   5  10. 
Argenbnght  v,  Campb'  II,  ft  ux.  320. 

Campbell,  407. 
Arniistead  v,  Butler,  4-17. 
Armstrong  v.  C•^rso'l'8  exrs.  112.  455. 
Armroyd  v.  Union  Ins.  Co  350. 
Armroyd  etal.  v.  Williams  el  al.  107. 
Arnold  v.  And^^ison,  3. 

Anderson  ct  al.  212. 


XXXIV 


TABLE  OF  CASES 


Arnold  V.  Bell,  497. 

The  United  Ins.  Co.  363. 
Bell,  255. 
Crai'e,  338. 
Arrington  v.  Coleman,  '2fi8, 
AiTOwsmith  et  ux.  v.  Van  Harlinger's  exe- 
cute s,  430. 
Ash  "I  al.  V.  Patton,  37.  230. 
Asllcv  V.  Williard  el  al.  417. 
A>kew  V.  Poyass,  175. 
Aspinwall  V.  Wutmore,  474. 
All"  rion  V.  Blow  n,  346. 
Atkinson  V.  Sfoit's  executors,  174. 
Atkynsv.  Burrows,  212. 
Atwrll's  a<lmihistrators  V.  Milton,  561. 
Ai.hei  V.  Ealer,  118. 
Austen  V.  Snow's  lessee,  118. 
Hancht-t,  136.  470. 
Biadeley,  211. 
adm.  V.  Whiilock's  executors,  152. 
Austin  V.  Richaiiison,  1. 
Hodman,  58. 
Wmsion,  404. 
Dills,  441. 
Fitch,  614. 
et  al.  V.  Hall,  300. 
Aostyn  v.  M'Lure,  406. 
Avery  v.  Moore's  executors,  557. 
etal.  V.  Pixley,58g. 
et  al.  V.  Stewart,  187.  433. 
Aveson  v.  Kinnard,  34. 
Axvis-v.  Musleroan,  557. 
Ayer  v.  Huichins  et  al.  330. 
Aza  et  al.  v.  Etlinger,3'J. 

B. 

Backus  V.  Richardson,  467. 
Bacon  v.  Bi'.wn,  484. 
Minor,  208. 
Sandlonl,  381. 
Ward,  117. 
Badgeley  v.  Hedges,  469. 
Badger  v.  Phinney,  502. 
Bailey  v.  Hyile,  471. 

et  al.  \.Fair|)lay,510. 

Ogd.  n  et  al.  42.  318.  322. 324. 
V.  Jackson,  49.  52. 
etal.  V.  Fairpla),  67.  72. 
V.  Souih  Carolina  Ins.  Co.  IOC. 
et  al.  V.  Ojr.ien,  224.  325. 
Ogdeiis,  ti28. 
Fre.'man,  405. 
V.  Kickols,  381. 
Bain  V.  Clark,  502. 
Baiiibriilge  v.  Downie,  43. 
Baird  v.  Cochran,  236. 
Rice,  43. 
etal.  V.  Blaigrove,  152.  172. 
V.  Blaigrove,  302. 
Baisch  V.  Hoff,  32. 
Baker  v.  Blount,  147. 

Seekright,  175.  509. 
Richardson,  4a4. 
lessee  V.  Miller  et  al.  173. 
V.Arnold,  213.  330.270. 

Webb,  59. 
etal.  V.  Field.  63.     • 


Baker  v.  Wheaton,  330. 

et  al.  V.  Arnold,  403.  208. 
V.  Ludlow,  346. 
Howell,  305. 
Bakewell  v.Th-   United  Ins.  Co.  346. 
Balb  V.  Dennis,  332. 
Baldwin's  adm.  v.  Munroe  et  al.  497. 
Baldwin  V.  West.  261.  382. 
Ball  V.  Rvers,  608. 

Bastock,  241. 
Ballard  v.  Walker,  326. 
Ballon  V.  Taliiot,  336. 
B-imfield  V.  Mrtssey,  13. 
Batiard  v.  Crane,  403. 

et  al.  V    Ward,  611. 
Bangs  V.  Snow  et  al.  177.  190. 
Bank  V.  Hvde,  175. 
Isriel,  142. 
Bank  of  Albany  v.  Smith,  270. 

Peniisylvaiiia  v.  Hadtegetai.  221 
Aijaerica  v.  Vardon,  332. 

'  ^        Petlit,  332. 
North  Araerica  v.  Vi>rdon,  334. 

M'Knight,  335. 
Petit,  335. 
Wycoff,  335. 
Barber  v.  Arnold,  213. 

Brace  etal.  174.  188. 
Barclay's  assignees  v.  Carson,  243.  300.  548. 
Baring  v.  Shippen,  4  213.  452. 

Reeder,  228   231.248. 
Barker  v.  Prentiss,  169.  190.  194.  213.  214 

236. 
Barker  v.  The  Phienix  Ins.  Cora.  346. 
Knajip,  603. 
Sntheiland,  485. 
Barlow  v.  Todd,  117,  169. 
Baindollar  v.  Tate,  172. 
Barnes,  tx^cotor  ot  Kay  v.  Kelly,  57. 

V.  Kinyon,292. 
Barnes  lessee  v.  Hart,  584. 
Irwin,  584. 
V.  Hurd,  465.  503. 
Webb,  472. 
Ball,  213  233.  " 
Barnett  v.  Crutcher,  438. 

V.  Tliorndike,  441. 
Barnewall  v.  Church,  347.  362. 
Bariiewell  et  al  v.  Milcliell,  208.  333. 
Barney  v  Cutler,  225. 
Barney  v.  Dewey,  483. 
Baron  v.  Abeel,  538. 
Bair  V   Graize,  99.  163. 

Hill,  406. 
Barrett  v.  Tazewell,  5. 
Barrett,  169. 
et  al.  V.  Rogers,  37. 
et  ux.  V.  French,  172. 
Barrie  v.  Nairac,  328. 
Barron  v.  Grillard,  85. 
Barrow  v.  Rhinel^nder,  234. 

Paxion,  602. 
Barrtiso  v.  Madan,  443. 
Barsv.  Root,  265. 
Barslow  V.  A<tams,  548. 
Barstow  et  al  v.  Fossett,  293. 
V.  Adams,  546. 


OF  AlVIERICAN  DECISIONS. 


XXXV 


Bartletv.  Pickersgill,78. 
Knight,  C8. 
Delpra,  26. 
Dclprat,  21.35. 
Marshall,  86. 
Barton  v.  Baker,  331. 

Hughes  et  al.  404. 
Bary  et  al.  v.  Man<lell  et  al.  609. 
Bassler  v.  Niesly,  3.  11.  35.  313. 

Lewis,  375. 
Baterman  v.  Phillips,  142. 
Bates  V.  Holinan,  5'Jl. 
Baudreau  v.  Montgomery,  24. 
Baxter  v.  Baxter,  35.  99. 
Baxter  v.  The  New  England  Marine  Insu- 
rance company,  107. 
Baxter  et  al  v.  The  New  England  Marine 

Insurance  company,  68. 
Bay  V.  Freazer,  328. 
Bayard  v.  Malcom  et  al.  484. 
Bay  ley  et  al.  v.  Tabor  et  al.  254. 

V.  Bates,  131. 
Baylies  et  il.  v.  Fettyplace,  288. 
Bazire  v.  Barry,  169. 
Beach  v.  Royce,  534, 
Cook.  534. 
Smith,  208. 
Hotchkiss,  307.  394.    " 
Beal  V.  Thompson  et  al,  93. 
Beall  V.  Edmundson,  424. 
Beals  V.  Gurnsey,  91.  602, 
Bean  v.  Smith  et  h1.  194. 

Bean,  216. 
Bean's  executor  v.Jr  nkin's  adminislralor,2lO 
Bearee  v.  Jackson,  130.  444,  445. 

Jackson's  iidmiuistrator,  444. 
Beardsly  v.  Foot,  208. 
Bf-aring  v.  Ruder,  213. 
Seattle  v.  Tabb's  administrators,  5'. 
Beauchamp  v.  Miidd,  55. 
Beekwith  v.  Butkr,  el  al.  169. 
Bedford  v.  M'Elherroa,  530. 
Bedinglon  v.  Soufhat,  21. 
Bedle  et  ux.  \.  Willi  t,  115. 
Beebe  v.Trafford,  115. 
Beedlev.  Gr^nt  .t  al.  307. 
Beers  v.  Strong,  469. 
Beissell  v,  Sholl,492. 
Belch  V.  HoUoman,  70. 
BeldcD  V.  Edwards,  175, 
Bell  V.  Andrews,  173. 

lessee  of  Wetherill,  ICo. 
Read,  9. 
M'Call,  118. 
Rowlands,  425. 
Graham,  482. 
Andrews,  313, 
Wood,  330. 
Reed  et  al.  344.  362. 
Beveridge,  361. 
Scott,  226. 
Allen,  286. 

The  Columbian  Insurance  Co.   373, 
Bell  et  al.  v.  The  Col.  Insurance  Co.  370. 
Belden  el  al.  v.  Carter,  152. 
Belding  V   Piikin,403. 
Bender  v.  Fromberger,  438. 441. 442.  446, 


Benezet  v.  M'Clenachan,  173. 
Benedict  v.  Bebt  e,  31 6. 
Lynch,  189. 
adminislralor  v.  NichoUs,  35. 
Benjamin  v.  Armstrong,  5. 
Porteo.s,  240. 
et  al.  V   Hathaway,  236. 
Bennet  v.  Peak,  408. 
Irwin,  444. 
Ward,  454. 
Hull,  321. 
Benson  et  al.  v.  Matsdorf,  537,  538. 
Bent  V.  Baker,  208. 
Bentaloe  v.  Pratt,  355.  367. 
Bergeu  v.  Bennet,  48. 
Birnet  V.  Taylor,  149. 
Berry  v.  Wallin  et  al.  262. 
Berryhill  v.  Wells,  57. 
Berry's  administrators  v.  PuIIan,  558, 
Bery  v,  Benet,  163. 
Bettison  v    Bromley,  235. 
Belts  V.  Death,  68.  265. 

Badger,  142,  162. 
Bettset  al.  v  Lee,  499. 
Beverley's  trustees  v   Smith  et  al.  435. 
Biags  V.  j\I<?rihew,  92. 
Bibb  V.  Cauihorne,  449. 
Bickford  v   Page,  445' 
Biddis  V.  James,  55.  111.  403,  404. 
Diggers  V.  Alderson,  6. 
Diggers'  administrators  v.  Alderson,  50, 
Bigelow  V.Jones,  445, 
Bigelow  V.  The  Cambridge,  8{c.  Turnpike 

Company,  455. 
Billews  V.  Bogan,  266.  424. 
Bingham  v.  Cabbot,  4.  85.  95.  159. 

Tulley,  307. 
Binney  v.  Menhant,  222. 
Binnsv.  M'Corkle,  471. 
Birch  V.  Alexander,  515. 
Birchfield  aiiministrator  v.  Caslleman,  171, 
Bird  et  al.  v.  Caritat,  104.  425.  547. 
Fierpoint,  546,  547. 
Hempstead,  495. 
Birt  V.  Kershaw,  240. 
Bishop  V.  Elv,.t  al.299. 
Dissell  V.  Kip,  286. 609, 
Hall,  429: 
Brigs,  68. 
Bizzel  V.  Btdieni,  105. 
Black  V.  Dii;ge's  <x  ecu  tors,  306. 

Bird  ,-330.  411. 
Blacklock  v.  Stewart,  107. 
Bladen's  loseev.  Cockey,  28.  95.  258, 
Blagg  V.  Fhcenix  Insurance  Company,  213^ 
United  Insurance  Company,  363. 
Blain  V.  Owles,  222 
Blaia's  lessee  v.  Chambers,  264, 
Blarichard  v.  Hilliard,  188. 
Blane  V   Proudfit,42. 
Blaney  v.  Sargent,  9. 
Blantonv.  Miller,  145.  222. 
Blake  v.  Wheadon  328. 

Se well,  330. 
Blrtidale  v.  Babcock,  65.  68. 
Blight  V,  Ashley,  35.  142. 
\shlevetal.43L 


XXXYl 


TABLE  OF  CASES 


Blight  V.  Fisher  et  al.  28'2. 

B'  g>-i's  h-iscf  ex.  al.  v.  Rochester,  255. 

Bl'iieoe  V.  Beikel -^^as. 

Bliss  V.  Thompson,  375. 

B.<'0>!sood  V.  Ovt-rseers  of  Jamaica,  226. 

Bloom  tt  nx    v.  Blonm,  473. 

Blossv. ,  5t6. 

BluiU  executor  v.  Starkey's  administrators 

37. 
Blyihe  et  al.  v.  Johns,  548. 
Boardm:>n  v  England,  117. 
Boearl  et  al.  v.  Simons'  executor,  265. 
Bogert  V.  H'ldrah,  292. 

et  al.  V.  Hildielh,  Gil. 
Bogle  V.  Conway,  427. 
Fitzhugli,  8. 
Sullivant,2. 
et  al.  V.  Sullivaat.lSO. 
Boggs'  administintor  v.  Black,,  530, 
Bo^gs  V.  T>  acle,  105. 
Boltz  et  al.  V.  B:.llra:in,  52. 
Boniinan  v.  B  'ver,  470. 
Bond  tt  al.  V.  Farnham,  331.  335. 
Bond  V.  Jackson,  168. 
Ciitlar,  265. 
Hay's  executors,  306. 
Ward,  602. 
OldeT.,  118. 
Haas'  executors,  173. 
etal.  V.  Seahdhl,  194. 
Bonnet's  lessee  v.  Dt^abaiigh  et  al.  28. 
Bo  Aei's executor  v.  M'Roberls,  449. 
Brokes'  lesst  e  v.  Ryan,  162. 
Boi  t  V.  Franklin,  334. 
Booth  V.  Tonsey,  173. 

Staro  et  al    445. 
Borden  V.  Fitch,  6S.  112   122. 
Boides  V.  HalKl,  352.  354  359. 
Bo!  letts  V.  Turnei-,  515.  516. 
Bostwick  V.  Bogardus,  55. 
L-acli,  320. 
ISickclson,  472. 
Ha-vvle, ,  472. 
Botsford  V.  Burr,  169. 
Belt  V    Burnell,  184.  607. 
Boucherean  v.  Le  Gu.  n,  92. 
Bond,  reau  v.  Mn.iigom- ry ,  81.  902. 
B  lurke  V.  Gr.ioberry,  107. k 
BoQ  'inot  et  al.  v.  Bradford,  590. 
Bovard  v.  Wallac-  ,  1 2. 
Bovard  et  ux.  v.  W.dUce  et  al.  582. 

BoMieii,  429. 
Bow  V.  Pai  sons,  208   266. 
Bowtn  V.  Bell,  189. 

Douglass,  -'80. 
Bower  V.  Blessing.  56 
B'lwei-s  V.  Fiizraiid')lph,  487. 
Bowers  et  at.  v-  Worrwll,  116. 
B.wles  V  Bingham.  22. 
Bownev.  Sliaw,3fi3  369. 
Boyd  V.  M'Lean  et  ux  171. 
M'Lean,3l8. 
Ba|)St,  ."575 
Bojdenv.  .Moore,  264  302. 
Boyd's  lessee  v.  Cowan,  537. 
Bo\  It  ston  V   Green,  .33<l. 
Bo)aioa  v.  Kellogg,  13.  544. 


Bradeley  v.  Goodyear,  30, 
Bra.leley's  lessee  v.  Bra.leley,  258, 
Bradeley  et  al.  v.  Blondget,  317. 
V.  Phelps,  3.36. 
V.  Amies,  489. 
Bradely  v.  Cauch,  299, 
Bradford  et  al.  v.  Farrand,  103. 
Bradish  v.  Schenck,  300.  504. 
Bradstreetet  al.  y  Bddwin,97. 
Bradshaw  v.  Callaghan,5. 
Branch  v.  Riley,  4l6.  441. 

Burnley,  188.411. 
Brandon  v.  Grinkie,  512 
Bijndt  cxd   Walton  v.  Ogden,  513. 
Brandler  ex  d.  Filch  et  al.  v.  Marshall,  513. 
Brant  ex  d.  M'Clelai.d  v.  Burrows,  510. 
V.  Livermor'-,  19. 

ex  d.Vancortland  etal.  v.  Klein,  252. 
Brantingham  v.  Ka> ,  264. 
Biashier  r.  Burton,  171 
Braxton's  administrator  v  Hilyard,  228.-30. 
Braxton  v.  Lee's  administrator,  434. 
Brazier  v.  Clap  et  al.  264. 
Brent  ex  d.  Vancoriland  et  al.  v.  Ogden,  et 

al.211. 
Bientnal  v.  Holmes,  391. 
Brent's  lessee  v.  Tasker,  428. 
Br.  werton  V.  Hnrris,  416.  ^ 

Bre«  son's  executors  v.  Cannon  s  exrs.  32. 
Brewster  v.  Thompson,  258. 
Bnckhill  V.  Turnpike,  307. 
Brickhouse  v.  Hunter  el  al.  29.  tl6. 
Bridge  V.  Wellington,  254,  262. 
Eggleston,  257. 
Austin,  263. 
M'Laue,  214. 
Bridges  V.  Duke  of  Chandos,  46. 

Eggleston,  35. 
Briggers  v.  Alderson,2. 
Bund  V.  Bacon,  227. 
Brink  V.  Bell,  116. 
Brit  et  al.  v.  Kirshaw,  227. 
Biocket  V.  Foscue,  189. 
Brockway  v.  Kmm  y,  69. 
Bionson  et  al.  v.  Earl,  57. 

Bromster  v.  Dana,  6. 
Biomlev'sadminisiiatorv.Ducketal.  10^>■ 

Biooks'v.  Hulibanl,  175.  339. 

D.nniR,  2S6. 
Brooker  v.  Cuffiu,  466,  467,  468. 
Broome  v.  Hurst,  282. 
Biothtrion  el  al.  v.  Hodges  et  al.  oUO. 

V.  Haslet,  418. 
Broughton  V.  Ward,  II. 
Brower  V.  Jones,  334, 
Brown  et  al.  v.  May,  2. 

Howard,  10. 
Graham  et  al.  11. 
V.  Downing,  3. 
Campbell,  4. 
Crown,  8. 
Giiard,l7. 
Downing,  40.  202, 
Yan  Deuzeli,  56,  82. 
Austin,  42. 
Bull,  42.  411. 
l.inion  Insurance  Co.  107 


OF  AMERICAN  DECISIONS. 


XXXVll 


Brown  v.  Insurance  Company,  106. 
Scott  et  al.  118. 
Brown,  29.  196. 
Gordon,  298. 
Lone,  561. 

Corporation  of  London,  239. 
Ho»t,  265. 
Forte,  407. 

FhoEiiix  Insurance  Company,  374. 
Neilson,  373. 
Campbell,  4.  406. 
Cuniing,  416. 
Dunham,  434. 
Chase,  434. 
Lambert" in,  470.  472. 
et  al.  V.  Babcock  et  al.  213. 
Howard,  227. 
Brown's  executors  v.  Putney,  427. 
Browne  v.  Browne  et  al.  440. 

Philadelphia  Bank,  109,110.  343 
P<  nnsylvania  Insurance  Co.  242. 
Cornwell,370. 
Barry ,  340. 
Craig,  335. 
Bruce  et  al.  v.  Pea'  son, 387. 
Brun  V.  Ingram,  328. 

David,  173. 
Brune  et  al.  v.  Woolcot,  52. 
Bruner  v.  Stout,  407. 
Brunson  v.  Bacon,  307. 
Lynd,  470. 
Brunster  v.  Dana,  51. 
Brush  V.  Taggart,  19.  82. 

Reeves'  administrator, 336. 
Bruster's  executor  v.  Wallace,  442. 
Bryden  v.  Bryden,  333. 

et  al.  V.  M'Gee,  100.  . 
Buchanan  v.  Monigoraery,  41. 
Buck  V.  Cotton,  333. 

Copland,  3l7. 
Buckley  v.  Duranl,  115. 
Stewart,  67. 
Buckminster  et  aK  s.  Perry,  9.  584. 
Buckner  et  al.  v.  Smith,  440. 

V.  Curry,  71. 
Buddicum  v.  Cirk,  451. 
Budlord  v.  Budibnl,  64. 
Buel  V   Gordon,  551. 
Buford  V.  M'Luny,  470,471. 

Fannen,  497. 
Bulkley  et  al.  v.  Landon  et  al.  28. 
V.  Stewart.  117.  307. 
Starr,  373. 
Brainard,  408.  443. 
Buikl  },  514. 
Si  ore  r,  485. 
Bull  V.Hopkins,  70  416. 
Bull  et  al  V.  Pratt,  175. 
Bullis'  administrator  v.  Giddens  et  al.  454. 
Bullitt's  executors  v.  Winston,  82. 
Bullock  v.  tiasfnrd,  264. 
Bulow  V.  Go'ldard,  3()3 
Bunce  V.  Bunce,305.  391. 
Bunn  V,  Morris,  30U. 
Bur  el  al.  v.  She:irman,  26. 
Burch  V.  Young,  431. 
Burbauks  v.  Lee,  307. 


Burd  V.  Dansdale,  4. 

Burd  et  al.  v.  Seabold,  130. 

Burgess  v.  Tucker,  410.  417. 

Burk's  -xecutorsv.  Tregg's  executors,  58, 

Burk  V.  Banard,  57. 

Allen,  167. 

Lessee  of  Young,  594, 

Phips,  544. 
et  al.  V.  M'Clain,  547, 
Burkart  v.  Biicher,  268. 
Burkland  v.  Tankard,  228. 
Bui-lingham  v.  Deyer,  224. 
Burnet  v.  Bisco,  405. 
Burnham  v   Webster,  454,  494. 
Burnley  v.  Lambert,  497. 
Burns  v.  Burns,  590. 
Burnes  executor  of  Kay  v.  Kelly,  43. 
Burrell  v.  Philips,  258. 
V.  Corbin,  574. 

Burrell,  515. 
Lithgow,  614. 
Burrow  v.  Setter's  executors,  298. 
Burtch  V.  Nickerson,  468. 
Burtingham  v.  Dyer,  41. 
Burton  v.  HInde,  238. 
Busby  V  Greenslate,  215. 
Bush  V.  Sheldon,  100,  101. 

Byvanks,  57. 
Bussard  v.  Levering,  335, 
Bust -r's  executor  v.  Wallace,  177.  442.  443. 

287. 
Bussy  V,  Ady,  243. 
Butler  V.  Haskell,  25. 

Butler,  57.  262. 

Warren,  208. 

Calling,  202. 
Butt's  administrator  v.  Price,  100. 
Buvs  et  et  ux.  v  Gilespie,  468. 
By'rd  V.  Cocke,  600. 
Byrne  et  ux.  v.  Van  Haesen.  540. 

C. 

Cadmus  v.  Dumon,  424. 
Catlwell  V.  Eaton,  495. 
Cahill  V.  Breiinetal.  7. 
Caines  v.  Brisbaud  et  al.  415. 
Calbraith  v.  Gracie,  .•546    350. 
Caldwell  V.  Abbey,  469.  472. 

M'Kain,315. 
Calhoun  v.  M' Means,  475. 

Pennsylvania  Ins.  Co.  350,352.107 
Insurance  Companv,  346. 
Calhoun's  lessee  v  Dunning,  67.  72. 
C^dkins  V.  Lee,  252.      " 
Callagan  et  al.  v.  Hallett  et  al.  403. 
CalUghan  v   Hall,  566. 
Camberling  v.  M'Call,  350. 
Campbell  v,  Wallace,  140.  169. 

M'Clenachan,  171. 

Twemlow,  117. 

Claudus,  105. 

Arnold,  503. 

Sullivan,  425. 

Williamson,  36 1,  367, 
etal.  V.  Injjrahara,  278, 
Canady  v.  Lambert,  506. 
Candy  v,  Twichell,  408.  440. 


xxxviu 


TABLE  OF  CASES 


Canfield  v.  Squire,  55.  laO. 
Canty  V.  Simpler,  255. 
Capp  V.  M'Doiigall,  339. 
Caiingtnn  v   Carson,  392. 
Carnahan  v.  Mall.  375. 
Carpenter  v.  Butterfield,416. 

Giofr,  90. 
CaiT  V.  Gooch,  406. 
Carroll  et  al.  v.    Boston  Marine  Insurance 

Ci)mp«ny,  345. 
Carroll  v.  M'Wharter,  233.  241. 
Carron's  lessee  v.  Boudinot,  535. 
Carson  V.  Hnod's  executors, 452. 

Blazen  et  al   494.      - 
Carter  v.  Simpson,  496. 
B.  ll:.my,  169. 
Carver  v.  M  arren,  316, 

Tracey,  35. 
Case  V.  De  Go<-s  et  al.  503. 
Porter,  31. 
Rcfve,  72.  75. 
Worlhiiiglon,  323. 
Sl.<pherd,  504.  620. 
Casey  v.  Brush,  307. 
Cassell  V.  Cooke,  443. 
Castle  V.  Pcirce,  445. 
Caswell  V.  Wendell,  445. 
Caufman   v.   Presbyterian    congregation   of 

Cedar  Spring,  24.  28. 
Cavode  et  al.  v.  M'Kelvey,  406. 
Chaddock  v.  Bi  ijjgs,  468. 
Chancey  v.  Strong,  540. 
Chancellor  v.  Vnughn,  267. 
Chaiidler  v.  Neal,407. 
Philips,  518. 
Edson,503. 
et  al  V.  Birlden,  499. 
Chandler's  executors  v.  Hill  et  al.  425. 
(Chaplain  v.  Kirwan,  116. 
Chapman  v.  Sti-inraetze,  338. 
Chapman    65. 
Wells,  267. 
Allen,  318. 
Lipscnmbe  et  al.  333. 
Smiih,  467. 
Turner,  178. 
Charles  v.  Scott,  306. 

Delpux,  288. 
Cheatwood  v.  Mayo,  471. 
Cheesborough  v.  Baldwin,  540. 
Cheethara  v.  Lewis,  426, 

Tillotson,  474. 
Cheriotv.  Poussat,  102.107,108. 

Bark'  r,  347.  372. 
Chesnut  Hill  Turnpike  Co  v.  Rutter,  30r. 
Chesstldinie's  lessee  v.  Brewer,  132. 
Chichester  v.  Vass,  600. ' 
Chiser  v.  Wood,  311. 
Chipman  V.  Cook,  473. 

Sawyer,  611. 
Chitiingfon  v.  Fowler,  318. 
Cholmondely  V   Clinton,  151. 
Christ  V.  Diffenbach  et  al.  171. 
Cinisti.'  V.  GoUlsborough,  608. 
Church  V.  Hubb3rt,4.  108.  110, 
Steel's  heirs,  43. 
De  W^olf,  227. 


Church  V.  Church,  171. 

Leavenworth,  C6, 
Habbard,  350. 
Bedient,  358. 
Rhodes,  409. 
Flowers,  441. 
Churchill  v.  Suter,  12.  200.  213.  216, 
Speight's  exrs.  150. 
Perkins  et  al.403. 
City  Council  v.  Trachelet,  49. 
Haywood,  234. 
Claffin  V.  Hawes,  431. 
Claiborne  v.  Parish,  21.  259. 
Clark  V.  Russel,  315.  340. 
Young,  337. 
M'Inlire,  376. 
Skinner,  502. 
Foot,  488. 
Campbell,  449. 
M'Anult> ,  444. 
Brav,438.602. 
Brown,  313-  318. 
Herring,  302. 
Ely,  426, 
Litchfield,  6J4, 
Eborn,  590. 
Kenan  et  al.  557. 
Welton,503. 
Vaughao,  516. 
Keimsayke,  86. 
Richard's,  125. 
Shee,  240. 
Carring,  65. 
Waite,  41. 
et  al.  V.  Herring,  405. 
executor  v.  Sanderson  executor,  146 
Clark's  executors  v.  Carrington,  67, 
Clark's  lessee  v.  Hall,  200. 
Clarke  v.  Russell,  4,  5.  174. 
M'Miliian,  168. 
Waite,  35. 
Clarkson  v.  Gifford,  292. 
Clason  et  al.  v-.  Morris  et  al.  391. 
Clayland's  lessee  v.  P.^arce,  515. 
Clayton's  lessee  v.  A'shouse,  508. 
Cleary  v.  Coor  et  al.  117. 
Clenients  &  Co.  v.  Easonetal.  151. 
Clements  v.  Eason,  307. 
Clenison  v.  Bush,  434. 
Clendeiining  v.  Chinch, ^65. 
Cleveland  v.  Fettvplace  et  al.  345. 
Clow  V.  Boist  et  al.  438.  443. 

Woods,  603. 
Cluggage  V.  Swan,  17. 
Civd'ev    Clyde,  172   174.493. 
Co.Hes  V.  Hughes,  101    592. 
Cobb  V.  Curies.  67. 

Williams,  431. 

BHldwin.236. 

Cobham's  assignees  v.  N'-ill,  429, 

Mosely,424. 
Cochrane  v.  Street,  258, 

Cochrane  et  al.  230. 
Leicestt  r,  416. 
et  al.  V.  Curamings,  375. 
Cock  V.  Fellows,  327 
Cockfield  V.  Daniel,  263, 


OP  AMERICAN  DECISIONS, 


XXXIX 


Cockrill  et  al.  v.  Calhoun,  132. 
Codwispet  al.  v.  Hacktr,  4'2, 
(Joe  V.  Hutloii,  5.  36. 
Cogbill  V.  Cogbill,  '230.  577. 
CoRcrs  executors  V.  M'Gea,  169. 
Cogswell  V.  Brown,  266. 
Coit  V.  Houston,  430. 

Delaware  Insurance  Corapany,  17. 
Bishop,  262. 
Coitetal.  V.  Del,  Insurance  Company,  363. 

Com.  Insurance  Co.  344. 
Columbian  Insurance  Co.  v.  Lynch,  366. 
Colbank's  executor  v.  Burt,  172. 
Colby  V.  Sampson,  611. 
Cole  V.  Fisher,  465. 
Wenrlel,l69. 
Grant,  417. 
Coleman  v.  Southwick,  267. 

Guardian  ot  N.  B.  103. 
Anderson,  164. 
Wise  et  al.  213. 
Coles  V.  Thompson,  92. 
Coles,  535. 
et  al.  V.  Marine  Ins.  Company,  351 , 
Coles' lessee  v.  Cole,  200. 
Colkyns  v.  Thackston,  424. 
Collins  V.  Wetsbury  et  al.  440. 

Torrey,  515. 
Colston  V.  Nicholai,  262. 
Colt  V.Noble,  331. 
Colyer  v.  Hutching's  executors,  431. 
Combs  V.  Fisher,  440. 
Comes  V.  Poyon,  504. 
Commissioners  ot   Berks   County  v.  Ross 

144.  150.263. 
Commissioners  of  Poor  v.  Hanion,  158. 
Commonwealth  v.  The  Pejepscut  proprie- 
tors, 71. 
Commonwealth  v.  Passraore,  489. 

Murray,  544. 

Stiicker,  570. 

Kesser,  258. 

Waite,  261. 

Drew  et  al.  264. 

Eberle,266. 

Hambrii^lit,  282. 

Atwoodj  288. 

Matlack,4l6. 

Clap,  473. 

Holmes,  474. 

Wheeler  et  al.48I. 

Texter,  3. 

Judges  of  Com.  Pleas,  3. 

Andrews,  7, 

Stow,  9. 

Eb  rle  n  al.  10. 

Hxnly,  14. 

Kinison,  16. 

Roberts,  19. 

M'Caii),  19. 

Drake,  35. 

Schriver,  38. 

Miller,  ib. 

Strieker,  ib. 

Conelly,  ib. 

Shepherd,  ib, 

Sliryber,  ib. 


Commonwealth  v.  DiUon,  44. 
Dcvone,  ib. 
Sloops,  ib.  43. 
Hevice,  ib  . 
Chabbock,  43. 
Frazier,  55.  111. 
Barbarick,  131. 
Norcross,  ib. 
Woelper  et  al.  136. 
Preston,  136. 
Snell,  143.  200.  218. 
Smith,  158. 
Messinger  et  al.  ib. 
Priestoii,l67. 
Jennings,  174. 
Hdl,196 
,    Murphy,  198. 
Hardy,  ib. 
Green,  200. 
Frost,  218.  226. 
Hutchinson,  218. 
Waite,  ib. 
K.igler,  220. 
Buird,  ib. 
Moulton,  226. 
Easlan<l  et  al.  248. 
Green,  201. 
Longchamps,  85, 
Bullard,  194. 
Company  of  Carpenters,  8sc,v.  Hay  wood,230 
Comstock  V.  Smith,  406. 
Conckhn  V.  Hart,  92. 
Conn  et  al.  v.  P^nn  et  al.  24.  28, 
Connecticut  v.  Miller,  266. 
Connor  V.  Bradey,  236. 
Conrad  v.  Con'  ad,  303. 
Conrad  et  al.  v.  Keyser,  210, 
Conroe  v.  Birdsall,'439, 
Conroy  v,  Warren,  331,  340. 
Consequa  v.  Willing  et  al.  2.  55.  111.  188, 

266. 
Converse  v.  Moulton,  178. 
Cooper  V.  Morrel,  32. 

Marsden,  30. 
Miller,  502. 
Elston,  321. 
Powell,  334, 
Coolide;e  v.  Williams,  491. 
Cook  V.  Corn,  236. 

Ambrade,  177. 
Barkeley,  471.. 
Wood,  60. 
Woodrow,  15. 
Cooke  y.  Wise,  397. 
Gibbs,298. 
Simms,  302, 
Graham,  290. 
Sholl,  80. 
et  al.  V.  Woodrow,  147- 
Copeland  v.  Anderson,  117. 
Coperthwfiite  v.  Jones  et  al,  258. 
Copp  V.  M'Dugall,  335. 
Copps  V.  Pollen,  131. 

Corbin's  administrator  V.  Southgate,  407.537. 
Corlidge  et  al    v.  The  Gloucester  Marine 

Insurance  Company,  357. 
Corlidge  v.  Paxson,  338. 


xl 


TABLE  OP  CASES 


Cornoy  v.  Ahraham  et  al.  208. 

Warren,  337, 
Cornwall  v.  I8hani,237. 
Cornnell  V  lshyra,220. 
Corticil  V.  Biicklt'v,  148. 
Cornwell  v.  Isht-m,  581, 
Coi-p  V.  M'Comb,  332. 

Jiobinsoii,  12  253. 
Corporation  of  New  York  v.  Dawson,  292. 

396. 
Corporation  of  Columhia  v.  Harrison,  44. 
Cortelyou  v.  Vanbrundt,  28. 191. 
Cones  V,  Billings,  41.  224. 
Corwein  v.  Hames,  226. 
Cottle  V.  Payne,  52. 
Cntteral  v.  Cumiuins,  465. 
Couch  V.  Metkt  r,  ITS.  314. 
Coulon  V.  Bowne,  347. 
Coutls  V.  Craig,  177. 

Covert  et  al.  v.  Irwin  et  al.  377.  510.  521. 
Covenli'y  v.  B'lrion,  406. 
Cowan  V.  Magauran,  424. 
Cowles  V.  Hart,  307. 

HmHs  et  al.  65. 
Cov.  lis  V.  Harts  et  al.  72. 
Cowperthwaite  V.Jones  etal.  263. 
Cox  V.  Trustees  of  Payne,  90. 
Cox  V   Jackson,  603. 
Cox's  heirs  V.  Strode,  445.  447. 
Cozens  V.  Stevenson,  171. 
Cnibtree  v.  Horton,  482. 
Craft  V.  Arthur,  603. 
Craig  V.  Brown,  54.  63.  111.  287.  3.35. 

United  States  Insurance  Co.  344. 
et  al  V.  United  Insurance  Co.  361. 
MuJ-gatrojd,  365. 
Graighill  v.  Page,  286. 

et  al.  V.  Page,  442. 
Cranston  v.  Kenny's  executors,  117. 
Crary  v.  Turner,  42. 
Crawford  v.  Murrell,  288. 
Creditors  of  Thayer  v.  SherifiF  of  Charleston 

District,  376. 
Cringan  el  al.  v.  Nicholson's  executor,  177. 
Cristnpher  v.  Anthony,  560. 
Crocker  et  ux.  v.  Whitney,  515. 
Croft  V.  Arthur  el  al.  213. 
Cromwell  et  al.  v.  Arrott,  328.  330,  331. 
Cronkshank  v.  Gray,  467. 
Croskeys  v.  O'Driscoll,  469. 
Crossf  n  V.  Hutchinson,  332.  335. 
Cross  V.  Guiheiy,  543. 
Crosswell  V.  Byrnes,  55.  82. 
Crolhers  et  al.  v.  Lessee  of  Dunning,  137. 
Croudson  v.  Leonard,  106.  121. 
Ciousillat  V.  BA\,  107.  353. 
Cruger  v.  Armsuons;,  337,  338.  342. 
Cuher  v.  Pearl,  4i6. 
Cummin  v.  Smiih,  172. 
Curamings  v.  Fisher,  31.  179.  334. 
et  al.  V.  Piuden,  5. 
et  ux.  V  Noyes,  304. 
Cunningham  v.  Herndon,  6. 

Cunningham,  132. 
Kimball,  288. 
Curcier  v.  Philadelphia  Insurance  Company, 

359,  361, 


Curren  v.  Crawford,  31,  S'2, 

Coneiy.  278. 
Curtis  V.  Hall,  439. 

Groat,  499.  504. 
Cushendon  et  al.  v    Harmon  et  al.  502. 
Cutler  V.  Brown,  557. 

D. 

Dalavigne  v.  United  Insurance  Co.  377. 
Dalney  v.  Green,  178. 
Dana  v.  Tu  ker,  258. 

Roberts,  266. 
Darnes  v.  Welsh,  509. 
Dandridge  V    Hams,  431. 
Danforih  v.  Culver,  4'24, 
Davidson's  lessee  v.  Bloomer,  l46, 147. 
Darmsdatt  v.  Wolfe,  294. 
Darroch's  executors  v.  Hay's  administrator, 

415. 
Davidson's  lessee  v.  Beatty,  165. 
D<rby  v.  Deas,  32. 
Davenpnrtv.  Mason,  316. 
Davis  V.  Cammel,  177. 

Johnson,  83. 

Wood,  2+  65. 

Maynard,  607. 

Gr;.mgr,  509. 

Hampton,  221. 

Living  et  al.  227. 

Gibson,  307. 

Meeker,  377. 

Boardman,  346. 
etal.  V.  Wood,  21.  24. 
Cummins,  ii82. 
Davy  V.  Hallett,  371. 
Dawson  V.  Condy,7. 
Dawes  V.  Jackson,  42. 
Day  V.  Hambergh,  298, 
Hamburg,  5. 
Wilber,'57. 
Greens,  '208. 
Day  et  al.  v.  Brett,  612. 
Deacon  v.  Cook,  238. 
Allen,  265. 
Deal  et  al.  v.  M'Cormick,  137. 
Dean  v.  Swoop,  11.  188. 
M'Pherrin,  287. 
De  Benneville  v.  De  Bennevillc,  19. 
Decamp  v.  Feay,  431. 
Decker  v.  Hardin,  484. 

Livingston,  47.502. 
Decrow  V.  Mones'  executor,  557. 
De  Dieraarv.  Van  Wagenen,  566. 
Dederer  v.  Delaware  Insurance  Company, 

90.  125.  172. 
De  Freeze  v.  Trumper,  377.  381. 
De  Forest v  Gaid,  52. 
D    Haasetal.  v  Galbrealh,  91. 
De  Haven  v.  Henderson,  140. 
D  hnffv.  Turbitetal   230. 
Drlafield  V.  Hand,  10.  58.  112. 
Delavan  V.  Baldwin,  293. 
De  Lima  v.  Glassell,  265. 
De  Lisle  V  Priestman,  199. 
De  Hart  v.  Covenhoven,  115. 
De  Long  v.  Stanton,  70. 


OP  AMERICAN  DECISIONS. 


xli 


De  Longuemere  v.  New  York  Fire  Insurance 

Company,  349. 
Deruing  v.  Taylor,  556. 
Dempsey  v.  Insurance  Company,  108. 
Den  V.  Vancleve,  196. 
Den  ex  d.  v.  Haggard,  147. 

Pickham  v.  Pissant  et  al.  135. 

Gaston  v.  Mason,  150. 

Farren  v.  Hamilton,  199. 

Colden  et  al.  v.  Cornell,  165. 

Smith's  heirs  v.  Barnes,  176. 

Bt-atty  V ,215. 

M'Donald  v.  King,  255. 

Park  V.  ','ochran  et  al.  514. 

Slade  V.Smith,  514. 

Hanks  v.  Smith,  514. 
Tucker,  516. 

Andrews  v.  Mufford,  429. 

Snedker  v.  Alen,  116.  582. 

Bell  V.  Hill,  603. 

Colden  v.  Cornell,  71. 
Denn  ex  d.  Boyd  v.  Banta,  424. 
Denn  lessee  of  Baker  v.  Webb,  141. 
Denn  v.  Pond  et  al.  49   130. 
Dennis  V.  Barber  et  al.  143. 

Ludlow,  3"3. 
Denny  v.  Lincoln,  403. 
Denton  et  al.  v.  Noyes,  35.  412. 
Depeyster  v.  Columbia  Insurance  Co.  268. 

et  al.  V.  Gardner,  347. 
De  Ridderv.  M'Knight,  322. 
Devoes  et  al.  v.  Moffat,  332. 
Devoy  v.  Royer,  416. 
Dewees  v.  Morgan,  383. 
Dewey  v.  Bradbury,  441. 
Dewitv.  Stainford,  307. 
Dewit  et  ux.  v.  Schoonmaker  ej  al.  561, 
Dibble  V.  Hutton,  436. 
Diblee  v.  Best,  115. 

Dickenson  v.  Commercial  Insurance  Com- 
pany, 369. 
Dickinson  v.  Barber,  195, 

Shee,  27. 
Dickerson  v.  Dickerson,  178. 
Dickson  v.  Fisher,  56. 

Bates,  582. 
Diermond  v.  Robinson  et  al.  226. 
Dighby  V.  Stedmaii,  30. 
Dillingham  v.  The  United  States,  286. 
Snow  et  al.  22.  26,3. 
Snow,  18. 
Dilman  v.  Schultz,  286. 
Dirckern  v.  Myers,  112. 
Ditzv.  Hutton,  436. 
Dixon  V.  M'Clutchey,  382, 
Cooper,  240. 
Swigget,  190. 
Dobbin  v.  Watkins,  141.  160. 
Dockery's  lessee  v.  Maynard,  521. 
Dodd  V.  Henry,  467. 
Dodd  V.  Noiris,  13. 
Doe  ex  d.  Hindlay  v.  Rickatby,  25. 

Sergeant  V.  Adams,  18. 

Clinton  ft  al.  v.  Phelps,  164. 

Gwyn  et  al.  V.  Starkes,  203. 

Clinton  el  al.  v.  Campbell,  513. 
Doe  V.  Roe,  35. 


Doederer  v,  Delaware  Insurance  Co. 360. 

Union  Insurance  Company  ,353 
Dolan  V.  Bnggs,  170. 
Dole  V.  Lyon," 471.  475. 

Van  Rensselaer,  467. 
Donaldson  v.  M;iginn  -s,  541. 
I  Means,  335. 

Chambers,  104. 
Donath  v.  The  Insurance  Company  of  North 

America,  365. 
Doolin  V.  Ward,  405, 
Dook  V.  Caswell,  340. 
Doolittle  et  ux.  v.  Blakesly,  175. 
Door  V.  Osgood,  262. 
Dorian  v.  Samrais,  381. 
Dorr  V.  The  New  England  Marine  Insurance 

Company,  106   357. 
Dorsey  v.  Jackman,  215. 
Dfirsheimer  v.  Bucher,  408. 
Doty  V.  Wilson, 406. 
Dougherty  v.  Clen,  442^ 
Douglass  V,  Beam,  290. 

Salterlee,  563.  565. 
lessee  v.  Sanderson,  24.  221, 
&  Co.  V.  Spears,  324. 
Sanderson,  24. 
Dow  V.  Smith,  354. 
Tutlle,  3-29. 
Dowling  V.  Ryland,  100. 
Downey  v.  Hotchkiss,  318.  436. 
Downing  v.  Baldwin,  3. 

Gatlagher  et  al.  165. 
Downman  v.  Downman's  executors,  431 
Drake  et  al.  v.  Chester,  609. 

V.  Collms,  327.  404. 
Drakely  et  al.  v.  Deforest,  315. 
Drane  v.  Hodges,  427. 
Drayton  v.  Wells,  89. 
D;uguet  V.  Rhinelander,  7. 
Drum  V.  Lessee  of  Simpson,  144. 172.  230. 
Drummond's  administrators  v.   Magruder, 

&Co.  etal.63. 
Dubois  V.  Allen,  545. 
Ducoign  V.  Schreppel,  31. 
Dudley  V.  Sumner,  264. 
Duerhagan  v.  United  Insurance  Company,  5 
Duffield  V.  Stille,  538. 
Duguet  V.  Rhinelander,  349.  369. 
Dumas  v.  Jones,  345.  365. 
Diimarsley  v.  Fishly,  132. 
Dumond's  administrator  v.  Carpenter,  305, 
Duncan  v.  Young,  335. 

M'Cullough,3.  332. 
Commonwealth,  5. 
FinHlay,  16. 
Dubois,  55. 
Beard,  158. 
Duncan  et  al.  179. 
Koch,  361. 
et  al.  V.  Kclffer,  391. 
Dunham  v.  Dev,  187. 

Buker,  168. 
Stuyvesaiit,  504. 
Dunkin  v.  Calb:-:tiih,  415.  418. 
llunlap  et  al.  v.  D.inlap  et  al.  575. 579. 595, 
V.  Silver,  3t0. 
Bull,  52. 


xlii 


TABLE  OF  CASES 


Dunn  V.  Sf.  Andrews,  307 

Dtiplanty  V.    Comiiiercial  Insurance  Com- 

paiij ,  549.  Sf>9. 
Dupiee  V.  M'Doiiald,  176. 
Dm  ell  V.  Masher,  498. 
Merrill,  117. 
Durkin  et  al.  v.  Cranston,  328. 
Durjet  V.  DLHtiison,  265.  334. 
Dutilh  V.  Gatl.ff,  361. 
D'Utricht  V.  Mekhor,  306.  375, 
Duval  V.  Bibb,  177.  189. 
Dyer  V.  Girar(l,4l. 

Hunuewell,  434. 


Earl  V.  Shaw,  170.  176.  345,  346.  358.  366. 

Eason  V.  Westbiook,484. 

Eu.'^lland  v.  Longshom  et  al.  43. 

Easlon  v.  Wortliin^ton,  502. 

East  wick  V.  Hugg,  304. 

Eaton  V.  Sandtbi-ft,  518. 

Ebert  v.  Wood,  313.  316. 

Eckart's  administrator  v.  Executors  of  Van- 

deusen,  115. 
Eckfert  V.  Des  Cnudres,  265. 
Ed(!ow.-s  el  al.  v.  Xiell,  485. 
Ed'  11  V.  Legar,  468. 
Edwards  v.  Handlcy,  440. 
Eelbeck  v.  Gianbenj,  5/4, 
Elberts  v.  Kialts>  369. 
Eldcrkine  v.  Elik-rkine,  546. 
Elkertoii  v.  Deacon,  481. 
Ellia  V     Tliielniaii,  479. 
Elliot  V.  Al^br  r> ,  466.  468. 
Ellioi's  lessee  V.  Osborn,  177. 
Elnieiidorph  v.  Toppen  et  al.  307. 
Elmondaff  V.  Carmichael,  165. 
Elmort  V.  Austin,  177. 
Else  V.  Ferris,  467.  470.  472. 
Elliiigel  al.  V.  Vandeil>n,  313.  405.443. 
Scott,  369. 
Scotl  et  al.  348.  374. 
Ely  V.  HaIhlt,3C8. 
Eiuans  v.Turnbull  et  al.  514. 
Emerson  et  al.  v.  Bngliam  et  al.  483. 

V.  Th'impson  el  al.  4'24.  558, 
Andrt  ws,  264. 
Emerson  v.  The  Propiietors  of  land  in  Mi- 

not,  444. 
Emei  ion  v.  Andrews,  210.  228.  261, 
Eiiimel  V.  Kobinsoii,  266. 
England  ex  il.  S_  burn  v.  Slade,  50. 

V.  Wilheispoon,4Sl. 
Eno  V.  Brow  n,  35. 
Ensign  V.  W-bslt  r  el  al.  172. 
Eppes  et  al.  y.  Ranrlolpli,  189. 
E|)pes' executors  v.  Cole  et  al.  395. 
Eps  V.  The  M  yor,  8tc.  Schnectany,  378. 
Ernst  T.  Barileetal.  442. 
Estabrook  V.  Hapgo'ifl  exf cutor,  607. 

Moiilion,  339. 
Estes  V.  Williams  fiOO. 
Esiis'  executors  v  Lei  ox,  557. 
01dtiaro,558. 
Ett.ngetal.  v.  Scott,  10, 
Etting  V.  Scott,  57. 


Etiing  V.  Vanderlyn,  302. 
Evans  v.  Hettich,  91. 

Hug  et  al.  440, 
Norris  administrator,  564» 
N  orris,  410, 
Eaton,  199 
Eveleth  v.  Cranch,  72.  100, 
Evert  V.  d  ay  et  al  408, 

Bat  r,  290. 
Everett  v.  Gray  et  al.  483, 
Evertson's  executors  v.  Miles,  382. 
Ewing  V.  Savaiy,  25.  ' 
Desilver,  72, 
Tees,  313. 
Vanarsdall,  502. 
Executors  of  Bowne  v.  Thompson  et  al.  417 
Clark  V.  Hopkins,  52. 
Evans  v.  Rogers,  265. 
Hiiger  V,  Bocquet,  413. 
Executors  of  Vanrenssellaer  v.  Executors  of 
Patner,  448. 

F, 

Falinestock  et  al.  v.  Faustenaner,  531- 
Fanchild  v.  Beach,  208. 
Falconer  V.  Montgomery,  118. 

Montgomery  et  al,  116. 
Fales  V.  Mayberry  406. 

Thompson,  546, 
Falkner  v.  Perkins,  603. 
Falls  et  al.  v.  Belknap,  220. 
Falls  V.  Belknap,  220. 
Fame  v.  Ham  matt,  335. 
Fanning  et  al.  v.  Myers,  261. 
Farce  v.  Strome  et  al.  279. 
Farington  v.  Faringlon,  242. 
Farinum  v.  Fowie,  332.  335. 

et  al.  V.  Barnum  etal.  284. 
Farley  v.  Thomson,  254. 
Farrar  adm.  v.  Barioti  et  al.  254.  403 
Farrel  v.  P^rrv,  208 

M'Cl'ea,  43.  86. 
Farren  et  al.  v.  MeniU,  51. 
Farrliigton  et  al.  v.  I^ayne,  69.  498. 
F^iiris  V.  Newbiiryport,  345, 
Farrow  v.  Ma}es,  418. 
F.inilel  et  al.  v.  Pho^nix  Insurance  Co.  348 
Faiiginr  v.  Ilullet,  353. 
Faulkner  v.  Eddy,  11. 

Lessee  of  Eddy,  149,  150. 
Faw  V.  Roberileau's  executor,  428. 
Faxon  V.  Hollis,  33. 

Mansfield,  408. 
Faysoux  el  al.  v.  Pruiher,  429. 
Fehl's  le-ss'-e  v.  Goorls,  2. 
Ftild  V.  Gibbs  et  al.  68. 

etal.  V.  Riddl-,   171.178. 
Fell  V    Good  <tal   263. 
Feller  V.  MuUiner,  65.  84. 
Feiiner  v.  L"wis,  36. 

Rogers  et  al.  29. 
Fenton  v.  Garlick,  68. 
Fenwick  v.  Sears,  3.30.  335.  340. 
Fenton  V.  Reed,  132. 
Ferguson  v.  Fitt,  371.  424. 
Taylor,  425. 
Harwood,  48.  63. 


OP  AMERICAN  DECISIONS. 


xliii 


Fernsler  v.  Carlin,  208.  215. 
Ferriss  v.  Ferriss,  496. 
field  V.  Gibbs,  102, 

Holland,  86. 
Hollai.d  et  al.  413. 
Field's  executors  v.  Spotswood,  406. 
Finch  T.  Kemble,  510. 
Findlay  v.  Bean,  467. 
First  V.  Miller,  82. 
Fisliv.  Wi-atherwax,  5. 
Fishbuinf  executor  v.  Sanders,  430. 
Fisher  v.  Duncxn,  558. 
Hyde,  105. 

Si.iithigo. 

B.own,404.  484. 
Evans,  332.  335. 
Fisher's  executors  v.  Duncan  etal.  2. 
Fister  v.  Beall's  administrator,  502. 
Fitcb  V.  Braneril,  584. 
Lothrop,  442. 
Hall,  18. 
Hyde,  95. 
Hill  etal.  213. 
et  al.  V.  Forman,  152. 
Fitzgerald  V  Fitzgerald,  115. 
Fitzhugh  et  al.  v.  Anderson  et  al.  429. 
Fitzpairick  et  al.  V   Smith  adra   169. 
Filzsimmons  v.  Newport   Insurance  Com- 
pany, 1Q6.  364. 
Fleming  v.  Alter,  305.  405. 
Gilbert,  1 69. 
Willis,  174. 
etal.v.  Walliice,  136. 
Flemmings  v.  Willis,  174.  178, 
Fletcher  v.  Pollard,  29.  116. 
Flowers  v.  Glasgow,  497. 
Flournoy's  executors  v.  Holcomb,  117, 
Floyd  V.  Day,  304.  495. 
Foden  et  al.  v.  Sharp  et  al.  334. 337, 338,339 
Fogler's  lessee  v.  Simpson,  24. 
Polliard  v.  Wallace  et  al.  444. 
Fontain  v.  Phosnix  Insurance  Company,  345. 
Foot  V.  Trac<^y,  13.  474. 
Foote  V.  Cadey,  57. 

Colvin,  503. 
Foote  et  al.  v.  Colvin  et  al.  318.  535. 
Forbes  v.  Hamilton,  317. 
Church,  6.  369, 
Fray  et  al.  116. 
Ford  V.  Garilner,  50, 

Keith,  306.  390, 
Foraer  v.  Hallacher,  541. 
Foster  v.  Shaw,  150.  198. 
SinklL-r,  33. 
Compter,  81. 
Abbott,  559. 
Abbott,  !4(lra.  565, 
Baldwin,  292, 
Fuller,  302 
Schoffield,  545, 
et  al  V.  Lowell,  546. 
ShMw  el  A.  91. 
Fowle  V.  Robbins,  467.  471. 
Fowle  adm.  v.  Lovet,  495. 

et  al.  V.  Stev'nson,  35.  42  • 

Biglow,  174. 
Fowler  v.  Savage  etal.  49. 


Fowler  v.  Savage,  75. 
Collins,  211. 
Norton,  236. 
Mm  corah,  6. 
Fox  V.  Wilcocks,  566, 
etal.  V  Reil  etal.  149 
et  al .  administrators  v.Whltney  adm.213 
Foy  V.  Foy,  314, 
Franklin  v.  Talmadge,  287, 
Low  et  al.  556. 
et  al.  v    B>ownson,  18. 
Fiaux, 141. 
Frasierv,  Marsh,  85. 
Frazier  v.  Cusham,  429. 
Hvland,413. 
Frear  V.  Hardenbcrg,  316,  317.  405. 
Frecland  v.  HowkIIJ  417, 
Freeman  v.  Phillips,  23. 
Ottis,  42. 
et  al.  V.  Boynton,  332.  406. 
Boyerton,  303. 
French  v.  Bank  of  Columbia,  335. 
Frey  v.  Wills,  60. 

Di-rstler,  541. 
Frier  et  al,  v.  Jackson,  509. 

Jacks<ii\  ex.  Van  Allen  et  al,  4 
Frink  v.  Luyter,  558. 
Frisbie  V.  Fowler  t-i  ux,  468. 
Friih  V,  Spragu. ,  »12, 
Frost  V.  Dugal,  607. 
Ca>tt-r,  336. 
Ftothingbam  et  al.  v.  Prince,  370, 
Froxwill,  &c.  V.  Fugatf,  285. 
Fulgham  v   Ltghmioi,  465. 
Fuller  V.  M'Call,361. 
Hancock,  428, 
Fullon  V.  Fotch,  80 
Funk  V  Arnold,  2S7. 
Fuiraan  v,  Haskm,  331. 

Coe  etal.  566. 
Fuqua's  executor  v.  Young,  564. 

G. 

Gage  V.  Stewart,  208, 

Ree.1,541. 
Gahn  et  al  v.  Broome,  355. 
Galbraith  v   Whyte,  382. 
etal.  V.  Coll,  7. 

Eichelberger,  202. 
Ft-mon  et  ux.  535. 
lessee  V.  Scot',  211. 
Galbreath  v.  Giacii-,  107, 
Gallagher  v.  M'Nutl,  515, 
Galloway  v.  Morris  et  al.  212, 
Gano  V.  Slaughter,  57. 
Gardere  v.  Columbian  liisufance  Company, 

99.  109.  112. 
Gardiner  et  al.  v.  Smitis  344,  345. 358.  363. 

V  Smith,  346. 
Gardner  v.  SmwIU'  ooil,  234. 
Pr.  ston,485 
Campb.  II,  503. 
Dnlch,502. 
Humphrey,  502. 
Maderia,  541. 
et  -d.  V.  Sraallwood,  211. 
Garlaad  v.  Broomer,  25. 


xliv 


TABLE  OP  CASES 


Garland  v.  Goodioe's  administrators,  HI, 
The  Salem  Bank,  303.  306. 
V.  Goodloe,  222. 
Garret  v.  Stewart,  189. 
Garrigues  v.  Coxe,  350.  362. 
Garvey  V.  Hilbert,  IH. 
Garti^n  et  ux.  v.  Chandler,  lfi9. 
Garwood  et  al.  v.  Dennis,  165. 
G:»^'l  n's  executor  v.  Lord's  executor,  59G. 
Gales  V.  VA'inslow,  30". 
Brattle,  52. 

Cwlilwell  el  al.  executors,  443. 
et  tl.  V.  Winslow  et  al.  403, 
Gatewocid  V   Burns,  169.  178. 
Gav  V.  Hum.  i69. 

Caldwell.  602. 
Gayetty  v.  Bethune,  28. 
Gee  V.  Warwick,  53. 
Geer  v.  Hoov  y,  434. 
Geis.s  V.  Odenhi-iraer,  167. 

et  ux.  V.  Odmheimer,  174. 
Gelstoii  et  al.  v.  Hoyt,  121.  123. 
George  v.  Hoover,  546. 
Gerard  v.  Lacoste  el  al.  328. 
G-imautown  v.  Livingston,  15. 
Gerri.-h  v.  Bearct,  130. 
G' vger  lessee  v.  G'vger,  162. 
Gey  It  ton  v.  Hoyt,  112. 
Gev«r  V.  Smith,' 116.     . 
Gilibs  V    Chase.  495. 
Gibbes  V.  Mitchell,  416. 
Gibbons  v.  Ogilen,  475. 
Gibson  v.  Fliila<lelphia  Insui-ance  Company, 

350.  373. 
Gibson  V.  Clifford,  64. 
Gilbert  v.  Rider,  432. 

Nantucket,  254. 
Field,  467.  472. 
Gilchrist  V.  Pollock,  385. 
Gilchrist  v.  Williams,  453. 
Giles  V.  Meeks,  170. 
G:les,  590. 
Bare  more,  51. 
Gilfert  V.  Halletet  al.356. 
Gdl  V.  Brown,  42. 
Gill  -t  al.  V.  Knhn,  393. 
Giliiland's  lessee  v.  Hanna,  520. 
Gilmore  v.  North  America  Land  Co.  552. 
Can-,  .^40. 
Wale,  145.  160. 
Gilpen  V.  Simple,  92. 
Gilpin  V.  Vincent,  226. 

quiiani  &c.  v.  Vincent,  332. 
Gilpins  V,  Conseqiia,  93.  169.  278. 
Girard  v.  Taggart  et  al.  307. 
Lacasteet  al.  328. 
Taggart,  386. 
Girard's  lessee  v.  Krebs  et  al.  40. 
Givens  et  ux.  v.  Colden,  176. 
GiMskow's  administrators  V.  Porter  et  al.  53 
Glasscock  v.  Smiiher,  590. 
Glover  v.  Heath,  5. 
Gobus  V.  Gdbus,  51. 
Gogel  V.  Jacobv,  408.  417. 
Goddiird  v.  Buiow,  176. 
Goix  V.  Knox,  346. 

Low,  106,  366. 


Gold  v.  Eddy  administrator,  212. 
Eddy,  330. 
et  al  V.  Philips,  515. 
Gonsales  v.  Devans,  118. 
Gonzalus  et  al.  v.  Hoover  et  al.  95.  194 
Goodale  v.  Haldridge,  404. 
Goodenow  v.  Biittrick,  416.  417. 
Goold  V.  United  Insurance  Company,  364- 

et  al.  V.  Shaw,  355. 
Goodrich  v.  Walker,  151,  152. 
Goodright  v.  M'Causland  etal.  264. 
Goodwin  v.  Jones,  100. 
Gordan  et  al.  v.  Browne's  executor,  286. 
Gorden  v.  Butts,  465. 
Gordon  v.  Jackson,  4. 
Brown,  5. 
Arnold,  33, 
Frazier,  57. 
Bowne,  356.  417. 
Pearson,  516. 
Secretan,  16. 
et  al.  V.  Little,  188. 
Gore  V.  Bi-."<zier,  445. 
Gorger  et  al.  v.  M'Carty,  S40. 
Goshen  Turnpike  Company  v.  Hurlin,  337. 
Gouldhawk  v.  Duane,  51. 
Gourdon  v.  Same,  350. 
Goui-don  y.  Insurance  Company  of  North 

America,  416. 
Govett  V.  Reed,  lis. 
Goveneur  v.  The  United  States  Insurance 

Company,  352. 
Govenor  v.  Edwards,  600. 
Matlock,  611. 
Grncie  v  B(iWMe,347. 
Graff  V.  SiTiith's  administrators,  596. 
Grangae  V  Arrien,404. 
Granberry's  executors  v.  Granberry,  566. 
Graham  v.  Graham,  4. 
Cammai),  3. 
Grant  v.  Bisseti,  10. 

Chamberlain,  73. 
J:ickson  et  al.  83. 
Nayler,  315   327. 
Nay  lor,  93. 
Winborne,  516. 
etal.  V.  MLachlin,  106. 
Grass  v.  Zorger,  1 1 8. 
Grassei-  et  us.  v.  Eckart  et  ux.  436.  540. 
Gratz  V.  Wtlson,  175. 
Graves  V.  MKriiic  Insurance  Company,  .'347, 

349.  351.  369. 
Graves  et  al  v.  Marine  Insurance  Co.  348. 
Dch.plaine,  242. 
V.  Webb,  391. 
Gray  v.  Pentland,  16.  141   145.  474. 
Gardner,  51.  1 04. 
Goodrich,  21.  ,33. 
Gray's  executors  v.  Ktruaham,  161. 
Green  v.  Stone,  304. 

Greenby  ct  al.  v.  Wilcocks,  444,  445.  447. 
Greene  v.  Stone,  04. 
Long,  407. 
Reynolrls,  380. 
*  Dewit,  560. 

et  al.  V.  Ovingion  et  al,  58. 
adiii.  V.  Hatch,  416. 


OF  AMERICAN  DECISIONS. 


xlv 


Greenle  v.  Young,  335. 

Greenleaf  V.Cook,  338. 

Greens  v.  Reynolds,  443. 

Greenwood  v.  Curtis,  41. 

Greaves  v.  M'Callister,  406. 
M'Ali3tef.303. 

Griffith  V.  Willing  etal.  393. 

Griffith  V.  Insurance  Company  of    North 
America.  346. 

Grier  et  al.  v  Grier,  118. 

Grimes  v.  Taliint,  30.  144. 

Grinnell  v.  Phillips.  264.  601. 

Griswold  v.  Judd,  496. 
Brown,  556. 
etal.  V.  Pitcairn,55.  109. 

Griswold  v.  The  New  York  Insurance  Com- 
pany, 360. 
-Groffv.  Musser,  118. 

Grote  V.  Grotf-,.48. 

Guerard  v.  Riners,  447. 

Gtiier  V.  Kelly,  564. 

Gurnie  v.  Dessies,  195.  233. 

Gustin  v.  Brottle,  453. 

H. 

Hack  V.  Breidenbach  executor,  172. 

Haddens  V.  Chambers,  551. 

Hadfeild  v.  Jamieson,  107. 

Halady  v.  Littlepage,  37. 

Halcomb  v.  Flournoy,  117.  600, 

Haldane   et  al.   v.  Duehes' executors,  305. 

395.  557. 
Halev.  Burr,  338. 
Hall  V.  Byiium,  148. 

Phelps,  35.  149. 
Moor,  496.  603. 
Schultz  et  al.  307. 
Little,  428. 
Dwight.  210. 
et  al.  V.  Gardner  et  al.  176. 
Huse,  37. 
Hall's  lessee  v,  Gaugh,  518. 
Halls  V.  Halls' administrator,  IG, 
Hallettv.  Wylie,  440. 
Peyton,  358. 

Columbian  Insurance  Co.  352. 
et  al.  V.  Inks  et  al.  363, 
Huse,  158. 
Halaey  v.  Bhown  et  al.  187. 
Bulkley,  427, 
Watson,  265. 
Ham  V.  Schuyler,  49. 
Hamaker  v.  Eberly,  302.  406. 
Hambieton  et  al.  v.  Wells,  176. 
Hamilton  v.  Van  Swearinger,  141. 

Williams,  44.  66.  146.  457, 
M'Guire,  147, 
Minor,  4.  24. 
Cutts  et  al.  65. 
Executor  of  M'Gue,  190, 
Cults,  9. 

Cuth  et  al.  executors,  444, 
Dent,  468.  472. 
et  al.  V.  Wilson,  445.  568. 
V.  Mai'sh,  6l4. 
Hamilton's  lessee  v.  Galloway,  147, 
Hamlin  ▼.  Fitch,  35, 


Hammet  v,  Bullitt's  executors,  287. 

Bullett,  452. 
Hammond  v.  Wadhams,  263. 
Denton,  426. 
Gaither,  596. 
Hampton  v.  M'Connel,  67. 

Garland,  58.  233.  582, 
Hancock  v.  V'awter,  444. 
Hanks  v.  Evans,  285. 

Tucker,  49.  52. 
Hannabali  v.  Spalding,  267. 
Hannay  v.  Eve,  404. 
Haiiiiura  V.  Askew,  282. 
Hantz  V.  Sealy,  557. 
Hull,  101, 
Hapkins  v.  Bt-edle,  472. 
Happy  V.  Will,  582. 
Hare  v.  Moultrie,  105. 

Fury,  538. 
Hardive  v.  Gordan,  9. 
Hardway  v.  .Vlanson,  2. 
Hardin  v.  Kreitzinger,  161. 
Haiker  V.  Elliott,  117. 
Harland  v.  Eastland,  447. 
Harper  v.  Hampton,  2.  429, 
Harris  v.  Lawrence,  286. 
Harris  v.  The  Eagle  Fire  Insurance  Com- 
pany of  New  York,  373. 
-  Harris  v.  Smith,  386. 
Burgess,  576. 
Denniss,  427. 
Mandeville,  552. 
Huntingdon,  237.  473. 
Huntington  et  al.  474^ 
Smith,  502. 
Brook,  6. 
Powell,  28. 
Richards,  64. 
Smith,  41. 
Dinkins  et  al.  169. 
Johnston,  174. 
etal.  V.  New,  11,  445. 
V.  Mandeville,  105. 
Harrison  v.  Harrison,  208.  515, 
M'Intosh,  502. 
Sampson,  557, 
Story  et  al.  547. 
Sterry,105. 
Harrison  et  al.  v.  Trustees  of  Phillips'  Aca,. 

demy,  152. 
Hart  V.  The  executors  of  Panter,  410, 
Bodely,  126. 
Teneyck  et  al.  86. 
Talmadge,  483. 
Fitzgerald.,  502. 
Hosack,  263. 
et  al.  V.  James,  118. 

M'Namass,  121. 
Hart's  executor  v.  Coran,  147. 
Hartford  v.  Palmer,  195. 
Hartford  Bank  v.  Hart,  237. 

Barry,  329. 
Hartness  et  al.  v.  Thompson  etal,  434, 
Hartshorne  lessee  v.  Pritton,  293, 
Haitwell  v.  Root,  49,  50. 
Hartzell  v.  Reiss,  451. 
Harvey,  8cc.  v.  Alexander^  219, 


xlri 


TABLE  OF  CASES 


Harward  t.  Billinglon,  126. 
Harwood  et  »l.  v.  Crowell  et  al.  453. 
Hasbi-ouck  v.  Baker,  82. 

Lown,  241. 
liaskin  v.  The  Hfw  York  Insurance  Co.  346 
Haskinsv.  Dui.nan,  304. 

Stmvesant,  157. 
Hasselden  ».  Brndey,  46. 
Hassinger  v  Solms,  306. 
Hasiie  v.  Depejst"  r,  365. 
Hastings  V.  Powers,  142. 
Hastler's  executors  v.  Skull,  300. 
Hatch  et  al.  v.  Hutch  et  ai.  152. 

Straight,  51.  172.  189. 
et  ux.  V.  Hatch  et  al.  441. 
V.  Hatch,  594. 
Hathorn  et  al.  v.  King  executor,  584. 
Hatter  v.  Speyer,  551. 
Hatwell  V.  Kolt,9. 
Hautz  V.  Rough,  146. 
Havwrd  t.  Davis,  590. 
Havens  v.  Bush,  443. 
Havestoii  V.  Cole,  111. 
Hawk  V.  Senseman,  515. 
Hawkins  v.  Hanson,  255. 
Tailor,  16. 
Depreist,  69. 
Bra<!ford,  118. 
executor  V.  Sumter  et  al.  146. 
Berkley,  287. 
Hawley  v.  Beeman,  338.  375. 

Brown,  576. 
Hawthorne  v  Roberts,  416. 
Hay  V.  Biure  et  al.  175. 
Hay  den  v.  Loomis,  584. 
Hayes  v.  Grier,  208. 

Acre,  395. 
Hazard  v.  Van  Anining,  159. 

Israel,  602.  615. 
Hazlehurst  et  al.  v.  Bavard,  416. 
Head  ft  al.  v.  Providence  Insurance  Co.  350 
Headen  V  Shed, 479. 
Heard  v.  Bradford,  304. 
Heck  V.  Shei.er,  418. 
Heckert  et  al.  v.  Hane,  147.  230. 
Heermance  v.  V'-rnoy,  377.  381.  503. 
Heffner  v.  Miller  et  al.  222. 
Heilmer  v.  Imbrie  et  al.  169. 
Heister  v.  Davis,  252. 
Hempstead  v.  Bird,  148.  501. 
Hendersoa  v.  Aliens,  7. 

Moore,  410. 
Hfpburn,  443. 
Foote,  425. 
et  al    V.  Brown,  620. 
Hendricks  v.  .ludah,  330,  331   418.  551. 
Franklin,  338,  339. 
administrator  v.  M'.ller,  36. 
Hennel  v.  Lyon  administrator,  56. 
Henry  v.  Dsnnaghy,  335. 
Risk  et  al.  187. 
Jones,  335. 
Hensbaw  v.  Pleasance,  80. 

Marine  Ins.  Co.  366.  370. 
Heowood  V.  Chee8eraan,4.  303.  424. 
Hepburn  v.  Cassel,  213. 

et  al.  V.  Auld,  163. 


Herbert  v.  Alexander,  508. 

Wise.  178. 
Herd  >.  Biss.  11,169. 
Hermance  v.  Vernop,  211,  212. 
Herr  v.  Slough,  7.  43.  503. 
Herrich  v.  Blair,  21. 
Herr xk  v.  Liphara,  472. 
Herring  v.  Wiggs,  50. 
Sanger,  410. 
Herron  v.  Sclio<iner  Pf-ggy,  124. 
Heish  V.  Ringwalt    471. 
Hewes  v.  Barker,  307. 
Hewlett  V   Chamberlayne,  449. 
Heyl  v.  Burling,  496 
Hf-yward  v.  Hazard,  584. 
Hicks  T.  Brown,  104. 

Burhams,  401. 
Rogers,  520. 
Hickman  v.  Bofr.nan,9.  135. 
Higgins  v.  Liveriuore,  346. 
HiggJDSOQ  V.  M<-in,  52,  53.  655. 
Minn,  516. 
Dall  344. 
High  V.  Wilson,  603. 
Higham  V  Ridge wav,  30. 
Highland  Turnpike  Co.  v.  M'Kean,  135. 
Hight  V    Wilson,  574. 
Hill  v.Elv,  171    179.194. 
Pavson,  236.  534. 
Pa^  son  et  al.  213. 
Miller,  502. 
Hill  et  us.  V.  Davis  et  al.  540. 
Hill  et  al.  v.  Southerland's  executors,  413, 
Hllhouse  V.  Mix,  520. 
Hilliard  v.  Nickols,  267. 

et  al  y.  Greenleaf,  105. 
Hills  V.  Roberts,  544. 

et  al.  V.  Ross,  42. 
Hillyard  v.  Grantham,  76. 
Hilts  v.Colvin,  15,  174. 
Hinman  v.  Brees,  82. 
Hitchcock  et  al.  v.  Aicken,  68. 

et  ux.  V.  Harrington,  453.  534. 
Hoax  V.  Mnlvey,  221. 
Hobby  V.  "Pinch  et  al.  323. 
Hobrook's  administrator  v.  Brown,  344. 
Hock  V.  Hock,  577. 
Hodges  y.  Blount,  603. 
Hodgs«n  V.  Musgrove,  116. 
Hoff  V.  The  Marine  Insurance  Co.  374, 
Hoffman  et  al.  ».  Smith,  86.  252. 
Hogan  V.  Delaware  Insurance  Company,  347 
Hogg  V.  Ashe,  416. 
Holdridge  V.  Allin,439. 
Holden  V.  Daken,  377.  381. 
Holland  v.  Holland,  35.  99. 

Makepeace,  415. 
HoUingsworlh  v.  Duane,  264.  267. 
Napier,  265. 
Ogleet  al.  451. 
Dunbar,  2. 
Leiper,  116. 
Halloway  v.  Lawrence,  149. 
Holme  V.  Karsper,  329 
Holmes  v.  Comegys,  251.  253. 
Hooper,  329. 
Williams,  482. 


OF  AMERICAN  DECISIONS, 


xlvii 


Holmes  r.  Brown,  470, 

Simons,  178. 
et  al.  V.  D'Camp,  410. 
HoU's  lessee  v.  Smith,  510. 
Homer  v.  Wallis,  148, 149.  158. 

Dorr,  186,  187. 
Hopkins  v.  Lee,  64   121. 
Hooil  V.  Trimble,  442. 
Hood's  executor  v.  Nesbit  et  al.  353.  367. 
Hooe  V.  Tebbs  et  ux.  449.  612. 
Hook  V.  Pagee,  51. 

Robinson,  382. 
Hooe  et  al.  v.  Oxley  et  al.  42. 
Hopkins  v.  M'Pherson  administrator,  43. 

Smith,  7. 

Blane,  42. 

De  Gi  aflFenreid,  16. 49. 

Young,  174. 

Beedle,  467. 

Liawell,  333. 
Hoquebles  v.  Girard,  105. 
Hornkeith  v.  Barr,  465.  544. 
Horsfeild  v.  Cast,  498.  500. 
Horsford  v.  Wright,  445. 
Horsiler  v.  Scull,  57.  563. 
Horstler's  administrator  v.  Skull,  496, 
Horton  v.  Monk,  504. 
Hotchkiss  V.  Luthrop,  474. 

Le  Roy  et  ai.  302. 
Nickels,  98. 
M'Vickar,  495. 
House  V.  Low,  172. 
Houser  v.  Reynolds,  440. 
Hovey  v.  Hovey,  89.  219. 
How  et  al.  v.  Bass,  169. 
Howard  v.  Salter,  116. 

Mitchell,  254. 

Lyon, 609. 
Howard's  lessee  v.  Gardner,  509. 
Howes  V.  Barker,  170. 
Howell's  lessee  v.  Tllden  et  al.  28.  95. 
Howland    v.   The    Commercial   Insurance 

Company,  369. 
Hoyle  V.  Young,  6. 468,  469,  470. 
Hoytv.  Giltnan,263.  266. 

Gelstiin  et  al.  121.  504. 
&c.  T,  Wildfiie,  212. 
Hubbell  V.  Caudrey,  68.  429. 

Cowdre^  .  305. 

Pratt,  559. 
Huber  V.  Sh»ch,501. 
Huble  V.  Hublanwhy,  289. 
Hudgensv.  Wrights,  51. 
Hudson  V.  Cary ,  423. 

Johnson,  411. 
et  al   V.  Gustier,  108, 
Huffv.  Parker,  118. 
Hughes  V.  Kiddel,  337. 

Miller,  442. 

Ht  iser,  489, 

Gdes,  496. 

Clayton,  557. 
Hughes'  administrators  v.  Stoke's  adminis- 
trators, 39.  41.  45.  249. 
Hulby  V.  Brown,  213. 
Hiimi-s  V.  Day,  233. 
Humphrey  v.Pison,  136, 


Humphrey's  lessee  v.  Humphrey,  €09. 
Humphries  V.  Blight's  assignee,  331.  418. 
Hungtrford  v.  Thomson,  179. 
Hunscom  t.  Hunscom,  206. 
Hunt  V.  Bovlau,  82. 

W'hirney,  254. 

Burrel,  602. 

Lewis,  444. 
et  al.  V.  Knickerbocker,  4*4, 
Hunt  adm.  v.  Adams,  169.   190.  264.  316, 

327.  441. 
Hunter  v.  M' Austin,  211. 
Huntingdon  v  Champlin,  4.  214. 

Bummill,73. 
Hurst  V.  Lithgow,  609. 

Dippo,  5.  17.  129. 
Hurst's  lessee  v.  Kirkhride,  171. 
Hurtin  u.  Hopkins,  267. 
Hussey  v.  Freeman,  332,  333.  335. 

et  al.  V.  Jewett,  434. 

Jewett  executor,  440. 
Hutchin's  lessee  v.  Erickson,  50.  521. 
Hutcheson  v.  Peck,  543. 
Hutchinson  y.  Brock,  298. 
Hvait  V.  Wo.id,  264  503. 
Hyde  V.  Tracey,  392. 
Hyers  V.  Wood,  6. 

Green,  6. 
Hylton  V.  Brown,  142. 
Hyraan's  lessee  v.  Edwards,  17, 


Iddings  et  al.  v.  Iddings,  180. 
Ilderton  r.  Atkinson,  24. 
llsley  etal.  v.  Stnbbs.  501. 
Ingalls  V.  Lord,  497. 
Ingles  V.  Donaldson;  603. 
Ingraham  v  Gibbs  et  al.  340. 

Hall,  151.  307. 
Innis  V.  Millar,  231. 
Insurance  Company  of  Alexandria  V.  Young j 

374 
Insurance  Company  of  North  Ameriea  v. 

Jones,  371. 
Ireland  et  al    v.  Kip,  333. 
Irvine  v.  Cook,  2. 

Knox,  36. 
IrTing  V.  Irving,  148. 
Irwin  V.  Shernll,  382.  483. 

R.  .  d  et  al.  95. 

Knox,  69. 
Isaacs  V.  M'Gr^tli,  144. 
Isley's  adra.  v.  Knight,  265. 
Ives  V.  Gilbert,  318. 

J. 

Jackson  v,  Richards,  329.  332. 

New  YoL-k  Insurance  Co.  368^ 

Wetherill,383. 

Mayo  et  al.  434. 

Stetson  et  ux.  475. 

Stilus,  510. 

Randall,  538. 

Murray,  25.  48.  158 

Rayner,  315. 

Commotiweallh,  S^ 

Stone,  §7- 


xlviii 


TABLE  OP  CASES 


Jackson  v.  Vandyke,  130. 

et  al.  V.  Winchester,  91. 
Jackson's  assignee  v.  Cutrielit,  314. 
Jacksoa  ex  d.  Andeison  etil.  v.M'Leod,536 
Bates  V.  Lawson,  89. 
Beach  V.  Durlnnd,  582. 
Btach  et  al.  v.  Duiland,  236. 
Beckman  et  ux.  v.  Witter,  130 
Belden  v.  Thomas,  515. 
Benton  v.  Laughead,  536. 
BUeker  v.  AVhitford,  509. 
Bond  etal.  v.  Root,  148. 
Bonnel  etal.  v.  Sharp,  513. 
Foster,  174. 
Bowers  v.  Crafts,  430. 
Boyd  V.  Lewis,  149.  198. 
Branch  v   Crystler,  511. 
Brayton  etal.  v.  Burchin,440. 
Bui-  v.  Shearman,  145. 
Bur  et  al.  v.  Shearman,  25. 
Bu5he  et  al.  v,  Hasbrouck,  142 
Burhams  v.  Blansham,  582. 
Bursham  v.  Blansham,  163. 
Builer  et  al.  v.  Ditz,  509. 
Caldwell  ?.Hallenbach,2U  .215 
Contine  et  al.  v.  Stiles,  508. 
Carr  v.  Green,  536. 
Clowes  V.  Vanderheyden,  71. 
Coe  et  al.  v.  Kniffen,  33  583. 
Coe  V.  Kniffen,  590. 
Colden  et  al.  v.  Moore,  515. 
Cooiler  V.  Woods,  582. 
Corderet  al.  v.  Woods,  236. 
Cortland  et  aJ.  v.  VanCorlaer, 

514. 
Cramer  v.  Winter,  510. 
Cramer  v.  Styles,  510. 
Danforih  et  al.  v.  Murray,  255 
Deuniston  et  al.  v.  Dennislon, 

516.  520.  582.       ' 
Dicks»n  et  al.  v.  Stanley,  186. 
Donally  v.  Walsh,  2'2.  47.  136. 
Donally  et  al.  v.  Walsh,  163. 
Donaldson  v.  Luc'-it,  19. 
Dunbar  v.  Lucett,  59. 
Dunbar  et  al.  v.  Todd,  59.513. 
Duncan  et  al.  y.  Harden,  317. 

514.  520. 
Ferris  v.  Fuller,  536. 
Frost  V.  Horton,  516.  536. 
GanseToort  et  al.  v.  Luun,  512. 
Parker,  513 
Gillespy  et  al.  v.  Woolsey,  47 

89.  160. 
Giiiiland  et   al.   v.   Woodruff 

etal.  513. 
Goodrich  v.  Ogden,  36. 

etal.  V.  Ogden  etal.  211 
Goose  et  al.  v.  Demaresi,  163. 
Gralzv.  Catlin,  325. 

etal.  ▼.  Catlin,  317. 
Griswold  v.  Bard,  36.  215.  513 

et  al.  V.  Bard,  I'O. 
Hardenberg   et  al.  v.  Schoon- 
raaker,  151.  163.  167,  170. 
511.  513.  518. 
Hardenberg  v.Schoonmaker  ,48 


Jackson  ex  d.  Housman  v.  Hart,  180, 

Howard  etal.  v.  Halloway,  590 

594. 
Jadwin  v.  Joy,  513. 
Jones  et  al.  v.  Brinckerhoff,  71 
Kane  etal.  v.  Sternbergh,  513 
Kimball  v.  VanSlyck,  521. 
Kiss  V.  Murray,  508. 
Kip  V.  Murray,  36.  50. 
Klein  T.  Graham,  513. 
Klock  et  al,  v.  Kichtueyer,  130 
Klock  et  al.  v.  Hudson,  514, 
Lawyer  v.  Stiles,  510. 
Le  Roy  m.  Steinberg,  266. 
Lewis  et  al,  v.  Laroway,  163. 
Livingston  et  al.  v.  Frier,  l4l. 

143. 
Livingston  et  al.  v.  Burton,  147 

Neely,  59, 
Locksell  et  al.  y.  Wheeler,  536 
Lloyd  V.Titus,  317.  323. 
Loux  et  al,  v.  Buel,  318. 
Low  et  al.  v.  Reynolds,  509. 
Ludlow  V.  Myers,  513. 
Malin  v.  Malm,  441. 
Mapes  V.  Frost  et  al.  234. 
Martin  et  al.  v.  Pratt,  52.  150. 

515. 
M'Crackin  v.  Wright,  255. 
M'Ciae  V.  Dunlap,  151, 
M'Donald  V.  MCall,  48,  65. 

514.  518. 
Miller  V.  Hixon,  121. 
Miner  V  Bone  ham,  25. 
Murray  et  al.  v.  Hazen,  520. 
Myers  v.  Elpwelh,  518. 
Neilson  el  ux.  v.  M'Vey,  252. 
NewcoraT)  V,  Smith,  65. 
Norton  et  al.  v.  Willard,  535 
Nellis  V.  Dvsliug,  514. 
Newcomb  v.  Smith  et  al.  514r 
Nellis  V.  Dyshing,  514. 
Porier  v.  Bailey,  95. 
Potter  et  al.  v.  Sisson,  521. 
Presten  et  al-  v.  Smith,  515. 
Putman  v.  Bowei ,  514. 
Putmow  et  al.  v.  Bower,  177. 
Ridder  v.  Rugers,  502. 
Rer.slaer  etal.  v.  Whitlock,518 
Ross  et  al.  v.  Cooley,  24. 
Rowley  et  al,  v,  Kinney,  264. 
Russell  et  al,  v,  Croy,  70, 
Schenck  v.  Wood,  191. 
Schuvler  et  al.  v.  Vedder,  C5, 

514. 
Simmons  etal,v.Chase,534.536. 
Shultz  etal.v.Goes,19.179,l80 
Smith  V.  Hammond,  59,  60. 
Smith  T,  St.  wart,  47. 

et  al.  V.  Stewart,  163- 
Pierce,  521. 
Stevens  v.  Stevens,  255. 
Stt-wart  V.  Kingsly,  162. 
The  People  v.  Wood,  47.  52. 
Tuthill  V.  Dubois,  534,  535. 
Tutilev.Gridely,206. 
Van  Allen,  v.  Vosburgh,  19, 


OF  AMERICAN  DECISIONS. 


xlix 


.Ucksonexd.Van  Allen  v.  Rogers,  312.  317 
Ambler,  69. 
V«n  Buskirk  v.  Claw,  1.32. 
Van  Coiitllandt  v.  Parkhurst et 

al.  536. 
Van  Denbery  v.  Bradt,  520. 

et  al.  V.  Bradt,513 
Vanderwenker  v.  Stiles,  50>. 
VaiiDeusen  v.VanL)eusen,151. 

157.215.  582. 
VanDeusen  et  al.v.VanDeusen, 

163. 
Van  Slyckv.  Son,  161 .269,270 
Van  Vetchan  et  al.  v.  Sill  et  al. 

168, 
Watson  V.  Cris,  21. 
Weidman  v  Hubble,  514. 
Whitbeck  et  al.  v.  Deyo,  521. 
White  v.Carv,  191 
Wildon  V.  Harrison,  533. 
Wilkinsetal.  v.  Bankcraft,  509 
Winter  v.  M'Evoy,  508. 
Wood  V.  Harrow,  62. 
Woodhull  V.  Rumsey,63.  101. 
Wright  V.  DieflFendorf,  514. 
Wyckoff  V.  Humphrey,  236. 
Youngs  V.  Vredenber^s,  34. 
Young  et  al.  v.  Vredinburgh, 

235. 
Zimmerman  v.    Zimmerman 
et  al.  504. 
Jacobs  V.Hall,  69. 

Jacoby  et  al.  v.  Laussatt,  228.  497,  498. 
Jacobson  v.  Fountain  et  al.  237. 

Fountain,  236. 
James  v,  Hatfield,  85. 
Harvey,  2. 
Gordon,  187. 
Finney,  317. 
Jamieson,  v.  Farr,  328. 
Jenner  v.  Joliffe,  32.  495. 
Janserv.  Hilton,  609. 
.January  v.  Goodman,  147.  306. 
Jarvis  v.  Ha' he  way,  267. 
Jasper's  administrators  v.  Tooley's  adminis- 
trators, 438. 
Javisv    Hatheway,  469, 
JefFirson  County  v.  Chaprt^n,  416. 
.Jeffrey  v.  The  Blue  Hill  Turnpike  Co.  455, 
Jenit'er's  lessee  v.  Baker,  510, 
Jenks  V,  Hallet,  7. 
.Jenkins  v.  Tom  et  al.  25. 
Kinsey,  60,  61. 
Putnam,  102. 
Jennings  v.  Ii'surance  Company,  344. 

Cox,  286. 
Jerome  v.  Whitney,  337. 
Jessup  V.  Cnok,  265. 
Jewett  V.  Jewett,  298.  559. 

Worttungton,  233,  234. 
Warren,  386. 
Joce's  lessee  v.  Harris,  515. 
John  V.  Fothergill,  239. 
Jnhncs  V.  Potter,  406, 
Johnson  v,  Blcodgood,  330,  331.  417, 
Weed  et  al.  410. 


Johnson  v.  Mason,  144. 
Pocker,  434. 
Daverne,  158. 
Patterson,  198, 
Bourn,  210. 
Eckhart,215. 
Daverne  et  al.  252. 
Howard,  516, 
Hart,  535. 
Bardslee,  425. 
Hocker,  16.  432. 
Pasteur,  540. 
Haightetal.  160. 
Brailsfnrd,  590. 
Macon,  612. 

Ronaldson  administrator,  324. 
Ronald,  326. 
Height  et  al.  329. 
Ca.llkins,  13. 
Clark,  18. 
Kerr,  12, 
Howard,  25, 
Smith,  66, 
ct  al.  V.  Packer,  496. 
Ludlow,  106. 
assif^nee  v.  Knight,  148. 
Johnston  v.  Tait,  473. 
Martin,  480. 

Columbiaa  Insurance  Co.  296." 
Caulkiiis,  544. 
Ludlow,  107. 
Joliffe  V.  Hite,376, 
Jones  V,  Jones,  36,  67. 
Gardner,  443. 
Le  Tombe,  42, 
Bache,  129. 
Gardner,  442. 
Sheriffe,  611. 
Hughes  et  a!.617, 
Fales,  263.  3-27.  329.  335.  330. 
Caswell,  331, 
Brinkley,  147, 
Mason,  l49. 
Curry,  180, 
The  PhcBnix,  212. 
Brook,  227,  249. 
Alexander,  263. 
Jones    V.    Insurance    Company   of    North 

America,  4.  372. 
Jones  administrator  V. Blount's  executors,148 
Jones  etal,  v.  Logwood,  152. 
Fales,  18.  264. 
Jonetv.  Wagner,  431. 
Jordan  v.  Cooper  et  al.  19).  221.  442. 
Cooper,  289 
Meredith,  266. 
Jorolimon  v.  Pierpnnt,  504. 
Josselyn  v.  Ames,  335. 
Joy's  i  ssep  V.  Ciisssnt,  548. 
Judah  V.  Randall,  345. 

etal.  V.  Kirap,  430.  498. 
Jmld  V.  Wood'uff,  534. 
Judson  v.  Lake,  100. 

et  ux.  v  Lake,  101. 
Juhel  V.  Rhinelander,  344,  363, 

etal.  v.  Cbarch,369. 
Jumel  et  al.  v.  Marine  Insurance  Co.  35 i 


1 


TABLE  OF  CASKS 


Kauffit  V.  Bower,  177. 

Kachlin  et  al.  v.  Mnlhallon  et  al.  410. 

Kane  v.  Columbian  Insurance  Company,  367 

Kane  et  al.  v.  IngialiMm,  551. 

Kain  etal.  ▼.  Osliaii<ier,  557. 

K«rs|)tTv.  Smith,  2'2'2. 

Kt-an  V.  M'Laughlin,  469,  470. 

Keating;  V.  Price,  169. 

Keel  et  al.  v.  Herbert,  2. 

Ktely  \.  ()r<|  etal.  32. 

Kceler  v.  Ailams,  416,  417. 

Ki^issellrach  v.  Livingston,  171. 

Keith  V.  Jones,  ?<-l7 . 

Felbarn  v,  Woodworlh.  68. 

Kt-llogg  V.  Ingersoll,  8.  438. 

Kelly  V.  FosieV,  S06. 

Ri.SKs,  441. 

Hol(lship,31.  548. 
assignee  nftiuileri  v.  Holdship,  31. 
Kelleran  v.  Brown,  '254. 
Kemble  v.  Bowne,  347.  .368. 

et  al.  V.  Rhinelandei- et  al.  105. 
K(  ndrick  v.  Delafiol.l,  '265. 
Kennings  v.  Willis,  176. 
Kempion  v.  Cross,  110. 
Kenedy  v.  Fairman,  '29.  32. 
Lowry,  469.  472. 
Gregory,  471. 
Kennedy  v.  Tertil,  285. 

Strong,  497,  498. 
Fiiry,'535. 
Duncan,  427. 
Fairman,  428. 

&  Co.  V.  Shoemaker,  617. 
Fail-man,  429. 
Kenny  v.  Clarkson  et  al.  111.  142.  344.  348. 
Kcnnj  T  Clarkson,  373. 
Kent  V.  Welch,  444. 

Kent,  73. 
Kenworthy  v.  Hopkins,  336.  338. 
Kerby  V.  Cogswell,  329. 
K.  tchum  V.  Scribner,  178.  403. 
Kerr  v.  Workman,  479. 
Kerr  &  Co.  v.  Lor.-,  32. 
Kibbe  \   Kibbe,68  451. 
Kid  V.  Mitchell     255. 
Kidd  V.  Riddle,  221,  * 

Kiddie  v.  D^-briiz,  65. 
Debt  utz,  86. 
Kidd's  adiinnistiator  v.  Alexander  adminis- 
trator, 111 
Kimball  v.  Ca(ly,263. 

Cunnin.ehHm,  381. 
Kimble  v.  Joslin,  160. 

etal.  V.  Rhinelander,  344. 
Kimmel  V.  Kimmil,  (98. 
Kinilockv.  Palmer,  583. 
Kimney  v.  B.  veily,  103.  509. 
Kimney's  executors  v.  M-Clure,  429. 
Kincaid   V.  Cuniii'.gh:im,  117. 
King  V.  King,  169. 

Newman,  178. 

BiNant,  441. 

W'ooil  et  ux.  468. 

Lyman,  560. 
King  of  France   v  Morris,  393. 
King  V.  Kochesier,  442. 


King  et  al.  v.  Phdlips,  ,339. 

King's  executors  v.  Bryant's  executors,  459. 

Kingston  V.  Kincaid,  118. 

Giraid,367.  371,372. 
Kinn  y  v.  B-verly,  163 
Kip  V,  Brighsm,  65,  06.  68.  81. 
Ki|)ad  V.  lienniston,  189. 
Kii»by  V.  Waikins,  92. 

Clark,  556. 
Kisham  V.  Nichols,  451. 
Kissam  <-t  al    v.  Burrell,  413. 
Kitchum   V    Scribi.er,  338. 
Kline  V.  Hiisted,  498. 
Knap  V.  Crosby,  434. 
Knox  V.  Work,  300. 
Garland,  6. 
Commonwealth,  56. 
Kohr  et  al.  v.  Fedderh-jff,  561. 
KoiiiS  V.  Grayson,  509. 
Koriz  V.  Carpf^nter,  444. 
Knuckle  V.  Knuckle,  118. 

Wymick,448. 

L. 

Ladd  V.  Blount,  58.  608. 
Ladd  V.  North,  50'2. 

LaingT.  Union  Insurance  Company,  lOO. 
Lake  v.  Shaw,  617. 
LiiRialire  V.  C-^ze,  199. 
Limib  V.  Hart,  33. 
Lambert  v.  Rogers,  145. 
L:ilie  V.  Degbeiy,  81. 
Cook,  66. 
Harrison,  70. 
Coply,  514. 
et  al.  V.'  Reynard  et  al.  510,  521. 
lessee  v.  Cover,*  434. 
Langdon    et   al.    administrators  v.   Potter, 

100.  558. 
Lang  V.  Brailsford,  340. 
Keppele,  305. 
Langdon  et  al    v.  Potter,  10. 
Longendjck  et  ux.  v  Burhams,  538. 
L-anning  v.  Shute,  102. 
Lansing  v.  Gain,  36. 

Monig  mery,  71.  299. 
Fleet,  609. 

Gaitwi  et  al.  328.  330,  .331.  S3". 
M-Killip,  337. 
Laplace  r.  Aupoix,  498. 
Large  v.  Passinore,  112. 
Lai  kins  V.  Miller,  516. 
Laniard  v.  Biiffinglon,  10. 
Larned  v.  Buffiiis;ton,  13. 
Laspeyre  v.  M-Parland,  496. 
Lassly  v.  Fontaine,  102. 
L-dtapee  V.  Pecholier,  410. 
Laliner  et  al.   v.  Ridge,  llG. 
Lauterrailch  v.  Kneagy,  287. 

executor  v.  Kneagv,  146. 
Law  V.  Wilson,  520. 

At  watt  r,  515. 
Lawrasoii  v.  Mason,  306.  407.  485. 
Lawrence  v.  Suann  i-t  al.  314. 

Van  Home  el  al.  345. 
Sebor,  347. 
Gardner,  435. 


OP  AMERICAN  DECISIONS. 


li 


Lawrence  et  al.  v.  Van  Ilornc  el  al.  142. 

lioherts,  68. 
Lawrence  v.  Ocean  Jnsiiiaiici.  Company,  80. 

162.  367. 
Lawson  V.  iVIorrisoii  et  al.  5'JO. 
Lfi\  V.  Hadi-n,  214. 
Lwyton  V.  Havg™"',  222. 
Lazell  V.  Pinriick  et  m|.  584. 

Pinnick,  173. 
Leach  v.  Armitag*-,  67. 100. 
Lcalh  V.  Coop'  r,  288. 
Leather  V.  Poult,  nej,  72.  173. 
Leavenworth  v.  Delate  ilfl,  370. 
Leavet  v.  Shfarman,  479. 
Leazur.  v.  Hillegxs,  143.  150.  167. 
Le  Baron  v,  Cr'  nibie  et  al.  89. 
Le  Caze  v.  The  Staf-  ot  Pennsylvania,  449. 
Lee  V.  Boardman,  352.  357. 

Tapsc.jit,  2.  15,  130.  163.  167.  515. 
Biddis,  171    173. 
Bai.k  of  England,  100. 
Love,  337. 
Husoii,  470. 
Leeet  al.  v.  Gray,  36fi. 
Lee  executor  of  Daniel  v.  Cook,  9. 
Lees'  lessee  v.  Bladm,  515. 
Leech  v.  Armitage,  55.  173. 
Leedora  et  al.  v.  Philips,  386. 
Leeds    v.    Marine  Insurance   Company   of 

Alexaiidri",  86. 
Leffiiigwcll  et  al.  v.  White,  287.  327.  330. 

332. 
Leftwith  V,  Berkley,  300. 
Legare  v.  Ash,  591. 
Legaux  v.  Feasor,  503. 
Legg  V.  Lcgg,  174. 
Leggett  V.  Blounl,  482.  485.      . 
Legrand  v.  Hampl,  55. 
Le  Guien  v.  Governeur,  67. 
Leighton  v.  Leighton,  56. 
Leister  v.  Smith,  470. 
Leland  v.  Stoi.e,  174.  445. 
Lemasier  v.  Burkhart,  169. 
Lenox  v.  The  United  States  Insurance  Com- 
pany, 344.  353 
Lenox  v.  De  Haas  et  al.  150.  230. 
Lent  V.  Prtdelford,  316. 
Lent  et  al.  v.  Padelfnrd,  28G. 
Lentz  V,  Strnh,  12.  216. 
Le  Roy  v.  Goveneur,  346. 

et  al.  V.  Servis  et  al.  403. 
Lessee  of  Albertson  v.  Robeson,  85. 

Allen  v.  Lyons,  180. 

Allston  v.  Sauiiders,  49. 

Alston  v.  Sauiidf  rs,  52. 

Baurt  V.  Day,  17. 

Billington  v.  Welsh,  313   377. 

Bioreii  V.  Keep,  11.  150.  2.33. 

Blown  V.  Galloway,  93.  120.  SS*.  ' 

Brown  V.  Long,  11.  150. 

Buart  V.  Da\ ,  25. 

Cain  V.  Kindf-rson,  215. 

Church  V.  Church,  171. 

Coxe  V.  Ewing  et  al  221. 

Crunkletan  v.  Evi-^t  et  al.  535. 

Cuggage  V.  Swan,  258. 

Dinkle  v.  Marshall,  171. 


Lessee  of  Eildy  v.  Faulkner,  130. 

Fersjnson  v.  SmallmHn,  509. 

Ff")  ler  V.  Evig  et  al.  141 . 

Fothert;ill  v.  Stover,  129. 

Galloway  v  Ogle,  50. 

Galbraiihet  al   v.  Eichelberger,250 

Germiiii  et  al.  v.  Galbald,  313. 

Grafz  V.  Ewalt,  215. 

Griffith  V.  Evans  et  al.   129. 

Tnnchaiiser,  129.  167. 

Hadge  V.  Fisher  et  al.  9. 

Hamilton  v.  Marsden,  146. 

He'ry  v   Mo-gan,  215. 

H' wesv.  M'Dowell,  129. 

Hoge  v.  Fish'M-  etal.583. 

liopi  well  v.  Overseers  of  Amwell, 
153. 

Ilubley  et  al.  v.  White  et  al.  172. 

Hyam  v.  Edwarls,  143.  166. 

Hyon  V.  Edwards,  131. 

James  v.  Stockey  et  al.  63. 

Latimore  v.  Martin,  116.  118. 

Lilly  V.  Kintzniiller,  24.  28.  233. 

Milligan  v.  Dicksn.i.^lO,  521. 

M'lntgomery  v.  Dickey,  10.  28. 

Moorhi^ad  v.  Pcarce,  162. 

Morris  v.  Floro,  221 . 

Packer  v    Gonsalus,  141.  510. 

Patterson  et  al.  v.  llagerman,  226. 

Paxton  V.  Price,  25. 

Penu  V.  Ingham,  129. 

Peters  et  al  v.  Condron  et  al.  14G. 

Peters  et  al.  v.  Condron,  1 1.149.222 

Pollock  V.  Gil!'"8j)ie,215. 

Plumstead  v.  Rudf'bag,  18.  40. 

Ross  et  al.  V.  Eason  et  al  266. 

Scott  V   Lf-ather,  143. 

Simon  v.  Gibson  et  al.  377. 

Sheilds  V    Buchanan  et  al.  129.215 

Sippen  V.  W.ils,  -280. 

Smith  et  al.  v.  Buchanan,  535. 

Snyder  v.  Snydtr,  170. 

Snyder  et  al.  v.  Snyder,  38.  97. 

Steward  v.  Richardson,  40.  173. 

Sweitzer  v.  Mease  etal.  215. 

Svlen  V.  Etkhari,  313. 

Talbot  V.  Simpson,  143. 

Todd  V.  Ockerraan  et  al.  129. 

Thomas  v.  Hni-1  icker,  147. 

Thompson  v.  White,  318. 

Thonison  et  ux.  v.  White,  168. 

Urb  V.  Underwood,  173. 

Watson  V.  Bailey,  248. 

Welker  v-.  Coulter,  521. 

Weston  V.  Stammers,  90    136,  137 

Westons  V.  Stammers,  1 12. 

WiUink  V.  Miles,  44.  510. 

Wright  V.  De<-.khn.',64.  170.  178, 
Lesher's  lessee  v.  Swan,  150. 
Leslie  V.  Nones,  52. 
Levan's  lessee  v.  Hart,  221. 
Levensworih  v.  Phelps,  30. 
Leverett  v.  Bellany,  443 
Levy  V.  Unit-^'d  States  Bank,  406 

Hampton,  53. 
Lewis  V.  Lotig,  175. 

Manly,  36.  208. 


lii 


TABLE  OF  CASES 


Lewis  V.  Bacon.  19. 

Few ,  '>86. 474,  475. 
Gray,  35. 
Wil<lum,  117. 
Williams,  290.  497. 
Lewis,  577. 
Martin,  540. 
Burr,  329. 
Hawley,  467. 
Niles,  470. 
Lewis'  executor  v.  Bacon,  425.  429. 

Xoiton,  594. 
Libret  V.  Child,  GOO. 
Lightner  v.  Wike,  35.  90. 
Liler  V.  Executor  of  Parsons,  447. 
Lillarrt  V.  Wliltaker,  497. 
Lloyd  et  al.  v.  Ingles  executor,  109. 
Lincoln  &  KcnnebeckBank  v.Drummond, 

511. 
Lindenberger  V.  Beall,  335. 
Lindei'berger  V.  Uiiriih,  115. 
Lindo  V.  Gardner,  340.  452,  453. 
IJnginfftter  v.  Litiginfetter,  591. 
Liotard  et  al.  v.  Graves,  363. 
Litchfield  v  Wilmot,  506. 
Little  y.  Tolflnd,  617. 
Ohrien,  339. 
Henderson  et  al.  190. 
et  al.  V.  lessee  ot  Df  lancey,  141.  16-2 
Livermore  v.  Newburyport  Insurance  Com- 

p.iny,  3.'i7. 
Livingston  v.  Livingston,  49. 

Maryland  Insu'ance  Co.  112. 
Rogers,  144.  404. 
Tenbroeck,  191. 
Kierstead  et  al.  196. 
Swanwick,  287. 
Tom])kins,  534. 
Bishop,  300. 
Hastie,  358. 
Delafield,  368. 

Columbian  Insurance  Co.  372. 
TrempiM-,  313.  407. 
et  al.  V.  Swanwick,  40. 
Burton,  147. 
Livingston    et   al.    v.    Maryland   Insurance 

Co.  187.  355. 
Lockwood  V.  Lock  wood,  514. 
Bulli,  498. 
Kt.p,  403. 
Logan  V.  Watts,  101. 
He'Ton,  531. 
London  v.  Howard,  335. 
Long  V.  Ramsa\ ,  4.  152. 
Pellet,  28. 
Bailey,  210. 
Baillee,  214. 
Baillie,  231,231. 
Perrv,267. 
Lonsdale  v.  Browne,  342. 
Loomis  V.  Hidver,  331. 

et  al.  V.  Tillinghast,  353. 
Lord  Viscoiiiii  Btlmore  v.  Anderson,  269. 
Lnste  V.  Durkin,  330. 
Lossee  V.  Uuiikin,  331. 
Lot  V,  I'homas,  440 


Love  V.  Payton,  148. 
Lovell  V.  Arnold,  25. 
Lovett  V.  Cutler,  548. 
Low  V.  Hallett,  U2.  292. 

Mumford,  299,  300. 
Low  et  al.  V.Davy,  353. 
Buel,318. 
Lower  Dub  School  v.  Paul,  118. 
Low  qui  tam,  &c.  v.  Little,  57. 
Lowther  v.  The  Commonwealth,  376,  44C 
Lowry  v.  Laurence,  426. 
Lowthrop  V.  Smith,  500. 
Lucy  V.  Pomfrey,  169. 
Dimock,  594. 
Ludder  v.  Leavitt,  495. 
Luddin  v.  Leavett,  495. 
Luddington  v.  Peck,  504. 
Ludlow  V.  Union  losarance  Companj,  210. 

263.  346. 
Ludlow  V.  Bingham,  331. 

Columbia  Insurance  Co.  360. 
Bowne  etal,  363. 
et  al.  V.  Dale,  106. 

Van  Rensselaer,  327 
Ladlura  v.  Wood,  438. 
Lummasv.  Fairfield,  551. 
Lusher  v.  Walton,  112. 
Lyie  V.  Clason,417  473. 
Lyman  v.  Clark  etal.  184. 

et  al.  V.  Edwards,  307. 
Lynch  v.  M'Hugo,  33. 
Lyiich's  executors  v.  Horrey,  29. 
Lynde  v.  Denison,  49.  51. 

Judd,  144. 
Lynn  v.  Risbtrg,  190. 
Lyon  v.  Fox,  482. 
Lyon  et  al.  y.  Tallmage,  65.  98. 
Lyon's  executor  v.  Gregory,  59.  287 

M. 

Maccubbin  v.  Thornton,  609. 
Mackay  v.  Rhinelander  et  al.  224. 
Mackay  v.  Rhinelander,  41. 
M.^ckie  V.    Pleasants,  346.  350. 
Macky  v.  Rhinelander  et  al.  368 
Macon  V.  Crump,  118.  441,442 
]Mn(!dox  V.  .lackson,  480. 
Madox  V.  Hoskins,  208. 
Miigill  V.  Cas.v,  501. 

Kauffman,  12.  90. 
Maggrath  v.  Church,  370. 

et  al.  V.  Church,  S4G. 
Maguhon  \.  lessee  of  Adams,  17;i 
Main  V.  Xewsnn,  219.  231.  242. 
Makepeace  v.  Contes  et  al.  416. 
M'.MeXander  v.  Hapiis.  471. 
Mallory  v.  As\)ir)wall,  152. 
Kirwan,  332  335. 
et  ill.  V.  .Aspinwall,  163. 
Malev  V.  Shattuik,  106. 
Malone  V.  The  Mary,  212. 
Mallet  V.  Mrtllet,  262. 
Man  V.  Chaiidlr-r,  42. 
Mhp  et  al.  V.  Mun  et  al.  179. 
Mandeville  v.  Ruldle,  340. 
IMandville  v.  Welch,  337. 
Manecly  v.  M'Gee  et  al.  51  - 


OF  AMERICAN  DECISIONS. 


liii 


Mangue  v.  Mangue,  131. 
Manly  v.  The  Union  Marine   and  Fire  In- 
surance Conapany,  184. 
Manlove  v.  Thrift,  117. 
Mann  et  al.  v.  The  executor  of  Man,  179. 
Manny  v.  Harris,  6i.  430.  432.  452. 
Manning  v.  Downing,  '293. 

executor  v.  Wheatland,  213. 
Marcardier  v.  Chesapeaiie  Insurance  Com- 
pany, 353. 
Marie  v.  Sample,  537,  538. 
Marine  Insurance  Company  v.  Wilson,  350. 
Woods,  107. 
Tucker,355..367. 
Marine    Insurance  Company   v.   Hodgson, 

90.  438. 
Marine  Insurance  Company  of  Alexandria  v. 

Young,  302. 
Marine  Insurance  Company  of  Alexandria  v. 

Oliver  etal.  484. 
Markle  v.  Hatfeild,  3'29. 
Marks  v.  Barker,  242. 
Bryant,  584. 
et  al.  V.  Pell,  178. 
Mart's  administrators  v.  Miller's  executors, 

57. 
Marquand  v.  Webb  et  al.  210. 
Marsh  v.  Union  Insurance  Company,  105. 
Marshall  v.  The  Delarware  Insurance  Com- 
pany, 358.  361. 
Marshall  v.  Parker,  105. 
Sprolt,  176. 
Hosmer,  602.  611. 
Marsteller  et  al.  v.  M'Lean,  424. 
Marston  v.  Hobbs,  442.  445. 
Martin  v.  Stillweli,  468. 
Taylor,  158. 
Horrel,  240. 
Woods,  298. 
Winslow,  338. 
Bradely,  611. 
Martin  et  al.  v.  The  Salem  Insurance  Com- 
pany, 345. 
Martin  et  al.  v.  Smith,  558. 
Bradley,  557. 
Williams,  118. 
Stover,  2. 
Mason  v.  The  Blarean,  367.  370. 
Franklin,  333. 

Massie  et  al.  v.  Sebastian  etal. 71. 
Master's  lessee  v.  Shute,  129. 
Mather  V.  Phelps,  41. 

Trinity  Church,  495.  503. 
Maupin  v  Whiting,  222. 
Mauri  V.  Htfferraan,  HI. 
Maxim  v   Morse,  303.  406. 
Maxwell  v.  Robins-m,  348. 
May  V.  Coffin,  303.  331,  332.  406. 
Majhew  et  al   v.  Prince,  338. 
Maynard  v.  Maynard,  152. 
Majbin  v.  Coulon,  403. 
Mayo  V.  The  Marine  Insurance  Company, 

370. 
Mayoi  &c.  of  Alexandria  v.  Patten,  413. 
Maze  V.  Miller,  172. 

M'Biii'e  V.  The  Marine  Insurance  Compa- 
ny, 360.  370. 


M'Calmont  v.  Murgatroyd,  3fil . 
M'Callv.  Welsh,  443. 
Turner,  451. 
Bullock,  496. 
M'Clarin  v.  Nesbit,  430. 
M'Clean  v    Hertzog,  161. 
M'Clenachan  v.  MCarty,.  159. 

Scott,  242. 
M'Cleland  v.  Commonwealth,  57. 
M'CIaughry  v.  Wetmore,  407. 
M'Cluiy  V.  Ross,  460.  510. 
M'Candlish  v.  Cruger,  328.  339. 
M'Comb  T.  Ogilvie,  50.  570. 

Wright,  324. 
M'Comb's  executor  v.  Dunch  etal.  557. 
M'Connel  v.  M'Coy,  470.  472. 
M'Connill's  heirs  v.  Dunlap,  169. 
M'Connico  v.  Cui-zeo,  566. 
M'Corkle  v   Binns,  144   150.  158, 159.  264. 
M'Cormack's  administrator  v.  O'Bannon's 

executor,  392. 
M'Coul  v.  Le  Camp  administratrix, 29. 
M'Coyv.M'Coy,593. 
M'Craw  v.  Gentry,  149. 
M'Culleugh  v,  Guetner,  38. 
Young,  100. 
M'Donald  v.  Fisher,  4. 
M'Dermont  v.  United  States  Insurance  Co. 

168, 169. 
M'Dill's  lessee  v.  M'Dill,  149.  152. 
M'Donald  v.  M'Call,  26. 

Select  Men  of  Greenwich,  21. 
M'Dowall  v.  Beckley,  168. 

Hall,  143. 
Mead  v.  M'Dowell,  12, 
Meade  v.  Tate,  224. 
Meany  v.  Head,  497.  502. 
Mechanic's  Bank  v.  Hazard,  552. 

Bank  of  Columbia,  174 
Meeker  et  al.  v.  Jackson,  221. 

V.  Potter,  484. 
Mellen  etal.  v.  Baldwin,  502.  556. 
Melody  V.  Reab,  454. 
M'Ewen  v.  Gibbs,  243. 
Merchant's  Bank  v.  Birch  executor,  332. 
Meredith's  lessee  v.  Mucoss,  40. 
Meredith  v.  Gilpin,  238. 
Merritt  v.  Warmonth,  497. 
et  al.  V.  Clason,  325. 

Bruckerhoffetal.  491. 
Merryv.  Prince,  365. 
Merwin  etal.  v.  Carap,255. 
M'i'ssier  v.  Armory,  102.  304. 
M'Evers  v.  M.won,  338. 
Pitkin,  556. 
Mev  V.  Tanno  et  al.  361. 
M-yer  V.  M'Lean,  454. 
Mever  °tal,  v.  Barker,  144. 
MFaJd^n  V.  Holey,  300. 
M  Fa"iai)d  v.  Barker,  502. 
M  Feiup  V.  Powers.  213. 
M'Ferrafi  v.  Taylor,  376. 
M'Giffiin  V.  Stout,  433. 
M'Gill  V.  Per.  iffo,  29iJ. 
M'ddlrtoi.  V.  Peiry,  175.  300. 
Mi''<tleion's  executors  v  Robinson,  306. 556. 
MiffliQ  V.  Biugham,  52.  233. 


liv 

Mifflin  et  al.  v.  Hinglium,  262. 
Mildinay  v.  Mild  may,  99. 
Miles  V.  O'Hara,  37.  90,  91.  212. 
Rerrnmblii'am,  5. 
M'Ciillough,  282. 
01(Ifiel(l,468. 
Miller  v.  \au!i;han,  117. 

Drake,  313.  380.  404.  'i43. 
(irosvenor,  453. 
Miller,  469. 
Dow,  513. 
Hucklfv,  342. 
Litlle,  215. 
Starks,  2.  222. 
Tin?  Resolution,  9. 
Hiili,  104. 
Talcott,  266. 
White,  266. 
Miller  et  al.  v.  Miller,  12.  583. 
Young  et  al.  561. 
Caroiiiers  et  al.  51. 
Miller  etal.  521. 
Depeyster  et  al.  358. 
Russell  el  al.  362. 
Russell,  367. 
Ord  et  al.  305. 
Oril,  391. 
Miller's  lessee  v.  Hynson,  515. 
Mills  et  al.  v.  Twist,  147. 
Mills  V.  Bell,  446. 

Griswold,  252. 
Twist,  15. 
Duryee,  67.  102. 
Dennis  et  al,  85. 
Milligan  v.  Dickson,  3. 
Milliken  v.  Combs,  71. 
Milling  et  al.  v.  CrankSeld,  177. 
Millisun  V.  Nicholson,  254,  255. 
Milne  v.  Cummings,  165.  516. 
Milner  et  al.  v.  Green,  551. 
Milom  V.  Burnsides  et  al.  468. 
Mihvard  V.  Temple,  151. 

Hallet,  228, 
Mina  Queen  and  child  v.  Hepburn,  24, 
M'lndo  V.  Lunt,  212. 
M'lntire  v.  Trumbull,  602. 

Rowan,  57. 
M'Intyre  v.  Bowne,  353. 
Minton  v.  Woodworth  et  al.  455. 
Miiitum  et  al.  v.  Barbf-r  et  al.  103. 
Missroom  et  al.  v.  Waldo  etal.  3S2. 
Mitchell  V.  Cogwill,  617. 
B.  II,  407. 
Gibbes,  418. 
Smith,  403. 
et  al.  lessee  v.  Grover,  285. 
Mitchelson  v.  Enos,  262. 
M'Kean  v.  Penrose's  securities,  83. 
M'Kee  v.  Myers,  305 

Myers  exf  cutors,  17. 
IM'Keen  v.  Delancv's  lessee,  144. 
M'Kim  V.  Marshall,  104 
M'Kimm  et  al  v.  Riddle,  557. 
MKinly  v.  Rob,  473. 
M'Kini:ey  v.  !•  ssf  <•  ot  Leacnek,  172. 

Crawford ,  64.  73. 
M'Kinnie  et  al.  v.  Oliphant's  executors,  557. 


TABLE  OF  CASES 


M'Kinstry  v.  PearsalJ,  172. 
M'Laughlin  v.  Scott,  118. 

Dors-'v,  556. 
M'Lean  v.  Barnard,  381. 
M'L  ne  V.  Pull,  rl on,  484. 
M'Leod  V.  Johnston,  228. 
M'Mahon  V.  Grady,  150. 
M'Meen  V.  Owen,  l69. 
M'Meens  V.  Calhoun,  263. 
M'Millan  V.  Birch,  468,  469.  472. 
Eastman,  307. 
M'Neil,  105 
M'Murphey  v.  Campbell,  602. 
M'Xeil  V.  Quince,  407. 
M'Nnit  V.  Jdhnson,  315. 
Mocon  V.  Crump,  285. 
M'lt'ses  V.  Thornton,  110. 
Montgomery  v.  Snodgrass,  91, 
Monlford  V.  Hunt,  64. 
Moody  V.  Pender,  479. 
Moon  V.  Campbell,  234. 
Moony  v.  Lloyd,  400. 
Moorbery  tt  al.  v.  Maze.  509. 
Moore  v.  Downey,  602. 

Suitril's  administrator,  540. 
Ames,  67. 
Bacon,  57. 
Houston,  17. 

Philadelphia  Bank,  2.  265. 
Fox,  32L 
C»r])enter,  439. 
Chapman.  283,  479. 
Morgan  t.  Minor,  178. 

Van  T'igen,  333. 

The   Insurance    Co.    of    North 

America,  372. 
Richards,  187. 
el  al.  V.  Bunk  ol  N.  America,  418. 
Bliss,  70. 
assignee  v.    Bank  of   North 
America,  187. 
Morrell  et  al   v.  Colden,  484. 
Morris  v.  Farin,  303 

Foreman,  SM.  339.  342. 
Phelps,  445.  447. 
Duane,  475. 
Morris,  171. 
et  al.  V.  Ross,  117. 
Morris's  lessee  v.  Smith,  596. 
Morris's  less-e  v.  Vanderen,  4.  11.  25.  35. 
59.  112.  130.  143.  251.253.  424.441. 
515,516. 
Morris's  exrs.  v.  CoiMiughey's  exrs,  392, 
Morrison  v,  Groes,  480. 
Winn,  500 
Morston  v.  Hobbs,  444. 
Morton  V.  Wells,  442.  430. 
Mosely  V  Jones,  307. 
Moses  et  al.  v.  Col.  Insurance  Company. 

345.  361. 
Mott  V.  Hurd,317. 

Anthony,  117, 

Doughty,  149. 

Goddard,  544. 

Motz  V  Buolard,  130. 

Movan  et  ux  V,  Hays,  176.  265. 

Moyes  et  al.  t,  Brumaux,  S2, 


OF  AMERICAN  DECISIONS, 


Iv 


M'Rainey  v.  Clark,  593. 
M'Rea  v.  Wood,  268. 
Br.wii,  411. 
M'Tavish  V.  Diini.inK, '252. 
Muir  el  al.  v.  United  States  Insurance  Co. 

.154  358. 
Mumlord  v.  Hallet,  177.  348.  356. 
Smith,  266. 
The    CommerciHl    Insurance 

Company,  354. 
Bowne,  174. 
Church,  358. 
Wright  et  al.  432. 
et  al.  V.  M'Phersoii  et  al.  172. 
M-F..rson,  174. 
Munns  v.  Dupont  et  al.  480  482. 
M'lntord  V.  Church,  90.  92. 
Munroe  v.  Maples,  540. 

Allaire,  115.  118. 
Gardiner,  263. 
et  al.  V.  Easton,  382.  336, 
Munsell  v.  Sandford,  521. 
Munsoii  V.  The   New   England  Insurance 

Company,  357. 
Murdock  v.  H^  rndon's  executors,  4.  453. 
Murgaltoyd  v.  Crawford,  369. 
M'Clure,  403. 
Murphy  v.  Bameti,  71. 
Murray  v.  The  Columbian  Insurance  Com- 
pany, 349.  369. 
The  United  Insurance  Company, 

358  368. 
Wilson,  17.  212.  235. 
Hatch,  169.  186,  187.  190.  357. 
Cnrrotl,  224.  233.  328. 
Govoneur,  409. 
Roosevelt,  498. 

United   States  Insurance  Com- 
pany, 346.  352,   , 
Williamson,  415. 
Trustees  of  the  Ringwood  Com- 
pany, 375. 
Goveneur,  et  al.  537. 
et  al.  V.  Marsh  et  al.  242. 
Murray's  lessee  v.  Buker  et  al.  428. 
Murrell  v.  Johnson,  392. 
M'Veaugh  v.  Goods,  231. 
M'Williams  V.  Willis,  172. 
Myer  et  al.  v.  Barker,  145. 
Myers  v.  Baker  et  al.  35. 
Palmer,  213. 

N. 
Nasan  v.  Thatcher  et  al.  220.  5S1. 
Nash  V    Gilkson,  12. 

Tuppcr,  429. 
Nass  V.  "Van  Swearingen,263.  563. 
Navigation  Company  v.  Citv  of  New  Orleans, 

221.  236. 
Neil  V.  Miller,  150. 

Neilson  v.  'Che  Columbian  Insurance  Com- 
pany, 348. 
Neave  v.  Jenkins,  438. 
Neliusv.  Biickell's  148.  248. 

Bricke  I's  adminisirator,  147. 
Nelson  v.  Andn  ws,  5. 

Columbian  Insurance  Co,  7,  367. 


Nelson  t.  WhiHal,  153. 
Luddorih,  397. 
United  Stales,  93. 
IJui  t,  496. 
etal.  V.  Columbian  Insurance  Com- 
pany,'270.  346. 
Nesbit  V.  Nesbit,  255.  448. 
Nessly  V.  SweHringen,  228. 
Newby  v.  Blakely,  69. 
Nettleson  v.  R'ggs,  496. 
Newbury  port  v.  Boothbay,  132. 
NewboUls'executo  s  v.  Lamb,  152. 
Newcorab  v.  Smith,  65 

et  al    V.  Ramer,  317.  320. 
Newell  V.  Th.  State,  426. 
Newhal  V.  Wndham,  197. 
Newhall  V.  Hopkins,  264. 
Newham  V  Raithln  ,  131. 
Newland  v.  D  ugla<;s,  257, 
Newlin  V.  Newlin,  4. 
Newman  v.  Bradley,  37.  43.  211. 
Newsan  v.  Carr,  12. 
Newton  v.  Wilson,  453. 

P.ppe,  488. 

GalbrailU,  430. 
New  Windsor  Turnpike   Co.   v.    Wilson, 

293. 
New   York    ^ire    Insurance    Company    v. 

VValden,  2 
Ney  V   Otlis,  468  470. 
Niblick  V.  Hazebrigs  executors,  23,  175. 
Nichols  V.  Hotchkms,  26, 

Hilliard,  141. 

Blakeslee,  443. 

Bronson,481. 

Whiting  431. 
NichoUs  V.  Walti.n  et  al.  executors,  445. 
Nicholson's  lessee  v.  Mifflin,  18.  40. 
Nickerson  v.  Brafkelt,  494. 
Nicole  V.  Mumfofd,  100. 
Nicolson  etal.  v.  Hancock,  417. 
Nimmo  v.  The  Com nviii  wealth,  560, 
Noble  r.  Smith, -281.  404. 

Howard,  416. 
Norfeit  V.  H.irris,  540. 
Norman  v.  Norman  Pt  al.  228. 
Norris  V.  Biach,  282. 
North  V   Mdlett,  413. 

etal.  V.  Malieit,  450. 
Noyce  v.  Huntington,  256. 
Noyes  v.  Moor,  318. 

O. 

Oakley  v.  Farrington,  467. 
O'Callaghan  v.  Sawyer,  330,  331. 
Oiliornev.  Wuikley,  270. 
O'Driscol;  v.  Burney,  481. 
Ogden  V.  Ashe,  349. 

Gibbons,  267. 

Millars'  executors,  31 
etal.  v.  Cowley,  417. 
Jackson,  552. 
O'Hara  v.   Hall,  168.  171. 
Olcott  V.  Graham,  560. 
Olden  executor  v.  ILdden,  104, 
Oliphant  V.  Taggart,  147. 
Oliver  v,  Newburyporl  Insurance  Co.  557 


Ivi 


TABLE  OF  CASES 


Oliver  V.  Greeu,  365. 

Olrostead  v,  Raymond,  609. 

Oneale  ▼.  Lodge,  190. 

Ordroneaux  v.  Prail>j4» 

Osborne  v.  Moss,  56(1 

Osgood  V.  Dewey,  395. 

Oswald  V.  Dickinson,  428, 

Outrain  v.  Moi  ewooti,  75, 

Overseers  ol  Tioga  v.  Overseers  ot  Seneca, 
302.  405. 

Overseers  of  Gf  rmantown  v.  Overseers  of 
Livingston,  21. 

Overseers  of  Berlin  v.  Overseers  of  Nor- 
wich, 174. 

Overton  et  ux.  v.  Hudson  executor,  600. 

Oveilon's  lessee  v.  Lackey  et  al,  64. 

Ow.;n  v.  Mi<nn,  214.  228. 
Estes  et  al.  318. 

Owings  V.  Spe'd,  136. 

Trater  etal.  172. 

Ozeas  V.  Johnson,  307. 


Pabodie  v.  King,  405. 
Packer  v.  S()anglir,  468. 

Spangler  et  ux.  466. 
Packard  v.  Richardson,  213.  2l6. 
Paddtick  v.  Higgins,  44l. 
Padeltord  ft  al.  v.   Buardnaan',  370. 
Page  V.  Woods,  29'2. 
Colson,  436. 
Paine  etal.  v.  M'Iiiti»-r,  168. 
Palmer  v.  H'cks,  48.  506. 
Mulligan,  265. 
et  al.  V.  Mulligan  et  al.  491. 
&c.  V   M'Ginnis.  285. 
Pancoast's  letsee  v.  Addison,  25.  428.  570. 
Pangburn  v.  Pairidge,  501. 
Prtfk  V.  Cochran,  222. 
Parker  v.  Hanson,  213,  214. 
Lovejoy,  213. 
Sn.eifK-y,  143. 
Elliott,  465 
Keniifdv,  306. 
Parker's  administrators  v.  Frambes,  481. 
Parker's  executors  v.   Passett's  executors, 

148.  304. 
Parkhurst  et  al.  v.  Van  Cortland,  176.  324. 
Parsons  v.  Mdls,  565. 
Passmore  v.  Pettit  etal.  118. 
Patrick  v.  Hallet,  6. 
Ludlow,  6. 
Hallet  et  al.  362. 
Patterson  V   Bradford,  521. 
Patton  V.  Freeman  et  al.  175. 

Caldwell,  64.  66. 
Patten's  admiuistraiors  v.  Park,  161. 

Ash,  144.  424. 
Patton  et  al.  v.  Wilinol,  331, 
Paul  V.  Frazier,  54i. 
Pawling  ▼.  United  States,  6. 

et  al.  V.  United  States,  178. 
et  ux.  V.  Wilson,  68. 
Payne  v.  W^inn,  335.  340. 
Pavne,  222, 
Trezewant,  224.  263. 
Payson  administrator  v,  Payson  et  al.  551. 


Peabody  v.  Denton  et  al.  144. 

Hoyt,  302.  454. 
Pearce  v.  House,  427. 
Pearpoint  v.  Hrnry,  497. 
Pearl  v.  Allen,  7.  55.  148.  158. 
Pearsall  et  al.  v.  Dwight  et  al.  428, 
Pearson  v.  Lord,  303.  406. 

Pearson,  329.  404,405. 
Wightman,  574.  579. 
Fisher,  131. 
et  al.  V.  Wightman,  148. 
Pease  v.  Alexander,  315.  405. 
Whitney  et  al.  265. 
Folger,  103. 
Peay  V.  Brigs,  268. 
Peck  V.  Trustees  of  Randall,  429. 
Wtodbiidge,  67. 
Sill,  175. 
Pederick  v.  Searle,  515. 
Pet-bles  V.  Rrading,  509. 
Pegram  v.  Lsabell,  25.  66.  89. 
Peitce  V.  B.itkr,  213. 
Pcisch  V.  Dicksoti,  179. 

Dixon,  499. 
Pelton  V.  Ward,  467  472. 
Pr  mberton  &c.  v   Scarce,  286. 
Pender  v.  Jonr-s,  429.  512. 
Pf-ndleion  v.  Button,  174. 
P*  .ifield  V.  Carpender,  2. 
Penhallow  v.  Doane,  5.  102. 
Penn's  ii-ssee  v    Hartmnn,  15,  130, 
Pennington  v   Hayes,  566. 

Parson's  executors,  566. 
Penny  et  al.   v    New  York  lusuiance  Com- 
pany, 370. 
Pennsylvania  v.  Stoops  248.  341. 

MK-e,  158, 
Penrose  v.  Griffith,  165. 

etal.  V.  King,  51,  52. 
People  V.  Bill,  10. 
Pf  poon  V.  Jenkitis,  63.  68.  103. 
Peppiiiger  v.  Low,  1,32. 
Percival  v.  Hickev,98. 
Perigttll  V.  Nicholson.  27. 
Perkins  v.  Kent,  52  i78. 
Williams,  100. 
Burnet,  41. 
Pevkins.336. 
Burbs.i.k,  429. 
Perly  v.  Spring,  3"  5. 

Foster.  501.  602. 
Perrin  v.  Sikes,  454. 
Perry  V.  A^iron,  288.  377.  381. 
Peters  v.  D.-lawaie  Insurance  Company, 366 
Henry,  609. 
et  al.  V.  Phoenix  Insurance  Co,  345. 
Peterson  v.  Wdling  et  al.  208.  228. 

Barry,  268. 
Petrie  v.  Woodworth,  285. 

Lynch,  32. 
Pettingal  v.  Brown,  226. 
Pel  ton  V.  Hallett,  208.  231.  359.  363.  373. 
Peyton's  administrator  v.Carr's  executor ,427 
Phelps  V.  Yeomans,  521. 

Thomson  etal.  21, 
Sage ,  254. 
Blood,  331. 


OF  AMERICAN  DECISIONS. 


Ivii 


Phelps  V.  Hartwell,  21. 

Hall,  208. 
et  al.  V.  Halkei-Pt  al.  68. 
Uiley,  '285. 
Phenix  v.  Assignee  of  Ingraham,  80.  242. 
Phetteplace  v.  Sieere,  404. 
Philips  V.  Stevens,  440. 
Hyde,  607. 
Keener,  168. 
Hose,  288. 
Phillips  V.  Boiisall,3'J7. 
Bruce,  408. 
Halsey,  416. 
BeiTick,  69,  70. 
Hyde,  83. 
Covert  et  al.  503. 
Berick.  68. 
Phoenix  V.  Day,  10. 

Phoenix  Insurance  Company  v.  Pratt,  4. 
Pierce  v.  Puller,  403. 

Hinds(lall,210. 
Pigon  y.  French,  391. 
Pigott  V.  Halloway,  150. 
Pile  V.  Shannon,  376. 
Pine  et  al.  v.  Vanuxum,  349. 
Pinney  v.  Pinney,  316. 
Pintard  v.  Tackington,  410. 
Pitcher  v.  Livingston,  446. 
Pitts  V.  Clark,  18. 

Temple,  130. 
Pitt's  execytor  V.  Hale,  502.  556. 
Place  V.  Lyon,  432. 
Fiiiinville  V.  Brown,  222. 
Plankinhorn  V   Cave,90.   173. 
Plait  V.  Robins  et  al.  561    566. 

Johnson  et  al.  491. 
Pleasants  v.  Meng  et  al.  548.  552. 
Pemberton,213.  233. 
et  al.  V.  Ross,  117. 
Plumb  V.  Whiting,  231. 
Poindexter  V.  Barker,  55. 
Pollard  V.  Shaffer,  190. 

Shaaffer,440.  448. 
et  al,  V.  Dwight  el  al.  444. 
D  wight,  174. 
Pollock  et  al.  v.  Donaldson,  350. 
PoiTiroy  V.  Columbian  Insurance  Co.  265. 
Pon's  executors  v.  Kelly,  335.  410. 
Poole  V.  Richardson,  584 
Poorman  v.  Smith's  executors,  4. 
Porter  v.  Warner,  25. 
M'Clure,208. 
Bussey ,  362.  369. 
Breckinbridge,  376. 
Perkins,  316. 
Ingrahara,  340. 
M'llioy ,  2. 
Posson  V.  Brown,  56. 
Post  V.  Munn,  4S8. 
Neafie,  68. 
Post  et  al.  V.  The  Phoenix  Insurance  Com- 
pany, 347. 
Potl  V.  Leshei ,  395. 
Pottatd  V.  M'Clain,  443. 
Potter  V  Lansing,  615. 
Polls  v.lmlay,  479. 
Cogdell,  176. 


Powell  V.  Waters,  89.  214. 
The  Betsey,  212. 
Biddle,  180. 
SmiUi,S91. 
Browi)*404. 
Powers  V.  M'Ferron,  4. 
Lynch,  .S27. 
et  al.  V.  MFerran  et  al.  147. 167. 
Pourie  et  al.  v.  Fletcbet-,  417. 
Pratt  V.  Phoenix  Insurance  Company,  364. 

Strickland,  434, 
Prentiss  et  al.  v   Savage,  103. 
Presbtiry  etal.  v.  W'llianis,  420. 
Prescott  V.  Tufts  et  al.  455. 

Trueman,  444,  445. 
Preston  v.  Bowen,  2. 

Harvey,  66. 
Prevost  T.  Gratz,  441. 
Prevost  V.  Nichols,  57. 
Price's  executor  v.  Warren  administrator  oJ 

Fuqua, 358 
Prichard  v.  M'Owen,  32. 
Primer  v.  M'Connel,  404. 
Pringle  v.  Black's  executors,  557. 
Prince  v.  Swell,  33. 

administrator  V.  Smith,  33. 
Prior  V.  Jacocks,  330.  415. 

Craig,  617. 
Pritt  V.  Fairclough,  30. 
Proctor  V   Moore,  103.  551. 
Proprietary  v.  Jennings,  57. 
Pruden  v.  Northrope,  267. 
Pulteney  et  al.  v.  Ross,  31. 
Punderson  v.  Fanning,  404. 

Brown,  535. 
Purcell  V.  Purcell,  132.  437. 
Purchase  v.  Call,  55. 
Purrington  v.  Loring,  83,  607. 
Purviancev,  Dryden,  227. 

Sutherland,  417. 
Purvis  V.  Hill,  509. 
Putnam  v.  Wyley,  465.  504. 
Payne,  487. 
Dutch,  602. 
et  al.  V.  Sullivan,  328.  338. 
Sullivan  et  al.  335. 

Q. 

Qnackenboss  v.  Lansing,  442. 

Quarles  administrator  v.Liitlepage,  36.  425, 

559. 
Quarles  et  al.  v.  Quarles,  188. 
Query  v.  White,  169. 
Quince's  administrators  v.  Ross's  administra=- 

tors,  52,  53. 

R. 

Radcliff  v.  The  United  States  Insurance  Co. 

107.  364. 
Radcliff  v.  Ship,  66. 

et  al.  v.  Union  Insurance  Co.  105. 
Ralston  v.  Bell,  .307. 

Cummins,  266. 
Rambler  et  al.  v.  Tryon  et  al.  509,583,584, 
Randall  v.  Bridge,  611 , 


Iviii 


TABLE  OF  CASES 


Randall  v.  Guiney,,285, 
Randolph  v.  Ware,  407. 

Randolph,  50. 
Runkin  V.  Blackwell,  11. 
Rapaljie  et  al.  v.  Sweetw  al.  496. 
R:  pt- ijc  V.  Emery,  102.  304. 
Rapp  V.  Elliott,  298. 

Le  Blanc  et  al.  199.  226. 
Raston  v.  Cummins,  63. 
Ratoon  v.  Overacker,  564. 
Rattoon  e(  al.  v.  Overacker,  560. 
Rawson  v.  Dole,  615. 
Raj  V.  Bush,  178. 

Mariner,  413. 
Walton,  590. 
Mariner  et  ux.  262. 
Boggart,  51. 
Ray's  pxpciitors  v.  Wood,  2. 
Raymond  v.  Smith,  38. 

Bearnard,  431. 
Rea  V.  Gibbons,  115. 
Read  v.  Thf  Commercial   Insurance  Corrt- 

pany,  354. 
Read  v.  Chapman,  105.  552. 

Colcock,  56. 
Reade  v.  Livingston  el  al.  320. 
Reading  v.  Metcalf,  148.  233. 
Ream  v.  Rank,  544. 

Commonwealth,  55.  137. 
Rearden  v.  Searcy's  heirs,  52, 
Reardon  v   Seary,  596. 
Reed  v.  Int;rMham,  416.  418. 

Gilkt,  44. 
Reedy  v.  Seixas,  332. 
Ret  I  V.  Re.^1,  584. 
Rees  V.  Robinson,  30. 
Rficcart  v.  Castor  ft  al.  172, 
Rf-ichart  V.  Castator,  552. 
Reiil  V.  Colcock,  230. 
Renl's  kbs.-e  v.  Dodson,  261, 
Ri  inesdick  v.  Kane  et  al.  86. 
Reinh'ill  v.  Alberti,  38. 
Rt  nadet  \ .  Crotki  r,  224.  507. 
Renedel  v.  Crooker,  41. 
Reiin  V.  Peniisvlvania  Hospital,  4.    * 
Renoard  v.  Noble,  179   285. 
Respublica  v.  Bob,  195. 

Keating,  218. 

Rich:.rds,  220. 

Hevicp  et  al.  219. 

Rny,  /Se. 

Gibbs,  259. 

Duane,  280. 

Oswald,  280. 

Sliryber,  10. 

M'Carly,44. 

Roberts,  44. 

Lecaze,  452. 

LecHZe  et  al.  449. 

Dennie ,  474. 

Davis,  475. 

Ainold,489. 

Farrell,  218. 

Caldwell,  489. 

Harris,  509. 

Wi 'gilt,  21 8 

Justices  Chenango,  268. 


Revere  V.  Leonard,  169.  254,  ' 

Leonard  et  al    168. 
Reves  v.  Booth  et  al.  176. 
Rex  V.  Barb-r,9l. 
Smith,  93. 
Strong,  431.496. 
Head,  132. 
Prosser,  238. 
Little,  238. 
Killerby,  238. 
Bobbins,  239. 
Brooke,  269. 
Middlezoy,  16. 
Inhabitants  of  Woburd,  34. 

Whitely  Lower,  34 
Hard  wick,  34. 
•  Kirdford,  238. 

Verelst,  44. 
Re.v  V.  iVIayor  and  Burgess  of  Oakhampton, 

239. 
Rham  v.  North,  172.  564. 
Rhinelander  v.  Insurance  Company  of  Penn- 
sylvania, 361. 
Rhodes  v.  Ainsworlh,  239. 
Ricard  v  Williams  et  al.  493. 

Williams,  49. 
Rice  V.  King,  66. 

Stearns,  213,  3^9,330. 
Austin,  228. 
Rice's  heirs  v.  Lowan,  515. 
Rich  V.  Trimble,  148. 
Richards  v.  Marine  Insurance  Company  ,348, 

349.  369. 
Richards  v.  Killam,  168.  190. 
Drinker,  117. 
Stewart,  141. 
Richardson  v.  Lessee  of  Stewart,  90.  170^ 
Colder,  90. 
Stewart,  278. 
Campbell,  171. 
lessee  v.  Pursons,  64. 
Richardson's  executors  %.  Hunt,  214. 
Richie  et  al.  v  Broadfield,3. 
Richtar  v.  Selin,  231. 
Rick.  1  et  al.  V.  Kelly  et  al.  465. 
Rick,  r  V.  Kelly,  316. 
Rickets  V.  Henderson,  17. 
Riddle  V.  Stephens,  17. 

.Maiirleville,  337. 
et  mI.  v.  Stevens,  S'iS. 
Ridgely  V   Spencer,  64.  81. 
Ridley  v.  Thorpe,  564. 

et  al.  V.  Taylor,  228. 
Ril.y  V.  Riley,  100. 
Ripely  et  al    v.  Gelston,  42 
Rippener  v.  Wright,  142. 
Ripsher  v.  Shane",  287. 
Rising  V  Granger,  472. 
Ritchie  V.  Holbrooke,  258. 
Moore,  417. 
&c.  V.  Lvne,  90. 
Ritcher  V.  .Selin.  06. 
Rivers  V.  Gi'uget,  332. 
Robbins  v.  Luce,  429. 

Wiii'lover,  257. 
Rribert  et  al.  v.  Garnie,  415. 
Roberts  el  al.  v.  Stanton,  163. 


OF  AMERICAN  DECISIONS. 


lix 


Roberts  v.  Fortune,  80. 

Swift  et  al.  303. 
Stao;s,  49 
Robertson  v.  Ewell,  7. 

Morgan,  59? 
ft  al.  V.  VoRle,  334 
Robertson  el  al.    v.   'I'he  United  Insurance 

Coinpan\  ,  349.  369. 
Robins  v.  Bingham ,  485. 
Robinson  v.  Gaines,  4.'i'2. 

Clifford,  53.  59.  Ml. 
Fisher,  299. 

C'>luinl)iaii  Insurance  Co.  351. 
Kenoii,  392. 
Ward's  executors,  68. 
et  al.  V.  Jones,  68.  106,  107. 
Rochelle  v.  Holmes,  49   59. 
Rodman  v.  Hoop's  i^xecumrs,  31,  32.  52. 

et  al.  V.  Forman,  292. 
Rogers  v  Brilev,  2.  232.  582. 
B<rrv;2U. 
Tracev,395. 
Brewster,  479. 
Coleman  et  ux.  67  102. 
Old,  31. 

Van  Hot-sen  et  al.  16. 
et  al.  V.  Van  Hoi  san,  141. 160. 
Warner  etal.  485. 
Rogers'  administrators  v.  Shaler,  158. 
Roget  V.  Merritt,  326. 

Thurston,  346.  358. 
Romayne  v.  Duane,  12. 
Romans  V.  Robertson,  118. 
Ronald  v.  Bentley,600. 
Rondeaw  v.  Wyatt,  320, 
Roosevelt  v.  Woodhull,  334. 
Rose  V.  Oliver  etal.  299. 
Brown,  432. 
Clarke,  564. 
Johnson,  315. 
Bruce,  160. 
HImely,  102.  108. 
et  al.  V  Beatie,  382. 
Roseboom  v.  Billington,  2.  53. 
Ross  V.  Carter,  222. 

Norvill,  169.  215. 
Norvell,  515. 
Norvall,  52. 
Lapham,  12. 
Gill  et  u\.  2. 
Bruoe,  143. 
etux.  V.  Winners,  38. 
Ross'  lessee  v.  Cutshall,  124. 
Rosseter  v.  Simmons  et  ux.  577. 
Rossevelt  et  al.  v.  Thurman,  117. 
Rotan  V.  Fltcher,  498. 
Rolhei-y  V   Howard,  226. 
Roundtree  v.  Tibbs,  142. 
Rouple  V.  M'Carty,  382. 
Rousset  V.  The  Insurance  Company  of  North 

America,  351).  416.  418. 
Routi  n  V.  Ronton,  313,  314. 
Rnwcrot't  v.  Basset,  240. 
Rowe  V.  Smith,  95. 
Rowctts  V.  Daniel,  59. 
Rowland  V.  M'Gee,  101. 
Ruan  V.  Perry,  12, 


Rubble  V.  Turner,  300. 
Riiffin  V.  Pandleton,  5fi6. 
Rug:in  V.  West,  96.  548. 
Ruggles  V.  Palton,  299. 

Lawson  et  al.  150. 

et  al.  V.  Shfrman,  71.  255. 
Rumney  v.  Church,  2'27. 
Rumsey  v.  Lovell,  11.  142.  483. 

etal.  V.  Lov.^11,  13.  485. 
Rush  V.  Cobbett,  68   454. 
Rimdle  v.  Murgatroyd's  lessee,  552. 
Runkle  v.  M:iy  etal. "475. 
Uussel  V.  Ball  el  al.  329. 

The  Insurance  Company,  369. 

Turner,  610. 
Russel  V.   The  Union   Insurance  Company, 

16    144.  344.  365. 
Russt  I  V.  The  New  England  Insurance  Co. 

373. 
Russel  executor  v.  Swan,  330. 
Russell  V.  The  New  England  Marine  Insu- 
rance Company,  345. 
Russell  et  al.  v.  Moor,  576. 

lessee  v.  Baker,  518. 
Rustell  V.  Mactjuistcr,  470. 
Rutgers  et  al.  v.  Lucet,  336. 
Rutherford  v.  Fisher,  5. 
Ruiledge  V.  Reed,  339. 
Ryer  v.  Atwater,  66. 

S. 
Sacia  v.  D^  Graaf,  427. 
Sacrider  et  al.  v.  IJee^-s  et  al.  491. 
Sadlers'  Company  v.  Jones,  239. 
SaidleriH  al.  v.  Church,  358. 
Sage  V.  Alsop,  305. 
Saimonet  al.  v.  Ranee,  129.  215. 
Ranee  et  al.  83. 
Salter  v.  Spei-,  85. 

Kirkhride  et  al   285. 
Saltonstall  v.  While,  508 
Saltus  et  al.  V  Commercial  Insurance  Com- 
pany, 302. 
Saltus  V.  The  Ocean  Insurance  Co.  372. 
Sanders  v.  M'Cracken,  66.  72. 
Hamilton,  72. 
et  al.  V.  Codwiseetal.  546. 552. 60S 
Sandford  v.  Mickles  et  al.  330. 
Dillaway,  532.  335. 
Rose,  375. 
Sandwith  v.  D-silver,  448. 
Sanger  v.  Stirapson,  339. 
Sansom  v.  Ball,  372. 
Sanlee  v.  Keister,  509. 
Sasportas  v.  Jennings  et  al.  440. 
Saunders  v.  Marshall,  67. 
Sawrey  v.  Murrell  et  al.  199. 
Sawyer  v.  Eiferl,  468,  469. 
Sawyer  et  al.  v.  The  M.  Fire  and  M.  Insu- 
rance Company,  106. 
Scarborough  v.  Geyer,  337. 
Harris,  335. 
et  al.  V.  Har'is,  337. 
Seliermerhorn  v.  ScIk  rmerhorn,  416. 
Jenkins,  433. 
et  al.  V.  Loin.s  et  al.  410, 
Schank  Y.  Stevenson,  221.  258, 


Ix 


TABLE  OF  CASES 


Schee  v.  Hassinger,  304. 
Scheik  V.  Woi'lsey,  174. 
Scht-nk  et  al.  v.  Coi  shew,  222. 
Scbtrnieihorn  V.  Vanderhevden,  189   305. 
V  <n  ValkViibtTgli,  498. 
Pelh<m,340. 
Scliieffelin  v  Harvey    1 87. 
Schlosst-r  V.  Lfsler.  427. 
Schmi<l(  v.Th.   Uoil'  fl  Insurance  Company 

351    360. 
Scholficld  V   B.  II,  499. 
Schoonmakei-  v.  Rcio^e  et  al.  561. 

Trans.  57. 
Schuyler  V.  Russ,  170.  381. 
t3ctlu^!kill   Navigation  Company  v.   DefFe- 

b:.cli.l  al.220. 
Sch\>  at  iz  V.  Tlionias,  471. 
Scott  V.  Curd,  441 , 

Ti    nt,4ll.  417. 
The  State,  206. 
Scott's  executors  v.  Osborne  executor,  406- 
Scriba  ».   Tlie   North  American  Insurance 

Company ,  360 
Scouton  V.  Eisfir(i,406. 
Seabring  v.  Ualbbun,  333. 

el  al.  V.  R^ithbuii,  330. 
Seabrook  v  King,  489. 
Seager  v.  Sligerland,  544,  545. 
Seagrove  v.  liednian  etal.  32. 
Searraan  et  al.  v.  Drake,  551. 
Seanghl  v.  Calbraitb,  IIU.  430. 
Calbraiib  et  al.  432. 
Sears  v.  Dillingham,  581. 

Brink,  324* 
SeawarrI  v.  Lord,  424. 
Secor  V.  Habcock,  479. 
Sedgwick  V.  Hollenbatk,  44i. 
Wat.  rman,  142. 
Seekright  ex  d    Wright  v.  Rogan,  222. 
Seekwrightex  d.   el  ux.  Wright  v.  Bogan, 

145. 
Seers  v.  Fowler,  380.  443. 
Seixas  v.  Woods,  o~7 .  381. 
Seidenbender  v.  Ch;u-les' administrators, 403 
Srlby  V.  Selby,  325. 
Selden  V    Hichcock,  500. 
Sell'ridgf-  V.  Gill,  552. 

Lithgovv,  611. 
Sellicketal.v.  Adams,  116.  118. 
Sample  V.  Burd,177. 
Sergeant's  lessee  v.  Biddle,  93. 
Sessions  v.  13air6tld,  115. 
Seton  et  al.  v.  Low,  344.  3G3. 
Sewell  ».  Lee,  298. 
Seymour  v.  Ensign,  444. 
Merrds,  470. 
Miicliell,  313. 
Shackelford  v.  Barrow,  443. 
Shadburn  v.  Jeimings,  73. 
Shaeffer  V.  Kteilzer,  65.  81. 
Shaffer  v.  Kempntilicam,  5. 
Aiidt  rson,  18. 
Kf-ntzer406.  468.473. 
C<M bell.  581. 
Shannon  et  al.  v.   The  Commonwealth  for 

the  use  ot  l,az:<rus,  203. 
Share  v.  Anderson,  18. 


SharfF  V.  Commonwealth,  S7. 
Sharpe  V.  Thatcher,  221. 
Sharp  V.  Dusenburv,  7. 
Shaver  v.  Ehle,  147. 
Shaw  V.  Pearc  •,'115. 

Griffith,  335.  337. 
et  al.  V.  Lou.J,  390. 
Shearick  v    Huher,  501. 
Slieeler  V.  Speer,  97. 
Sh  lids  V   Pringle,  51. 
Shelby  V.  Bnyd  etal.  296. 
Sheiden  v.  Soper,  495,  496, 
Sheldon  V.  R.ihhetMJ.  100. 

Bird,  514. 

K;bb,70. 
Shellon  V.  B:<ibour,  64. 

Ba:  ber,  66. 
Schenck  v.  Monflay ,  267. 
Shenk  V.  Mondford  et  al.  503. 
Shei)ard  v.  Rvers,  516. 

Hall,  333. 

Merrill,  117,  472. 
Shephard  v   Little,  174.  189  407. 
Slieppaid  executor  v.  Starkie,  566. 
Shepperd  v.  W'alrous,  117. 
Sherburne  v.  Fuller,  314.  317. 
Sheredine  v.  Gaul,  430,  431. 
Sheiift'v.  Forgne,  22. 

Byvnnk,  609. 
Sherman  v.  Beal,  117. 
Ddl,91. 
Sherman,  252. 
Sherwood  v.  Salmon,  375.  484. 
Burret  al.  492. 
Sbippen's  lessee  v.  Bush,  7. 
Shock  V.  M'Chesney,  470.  481. 
Shoemaker  v.  Keely,  546. 
Livezly,  267. 
Shortz  V.  Quigley  ,  4. 
Shotwell  V.  Boelim,  538. 

Wendovei-,  430. 
Denman,  4.30. 
Shotwell's  executors  v.  Denman,  430. 
Shrider's  lessee  v.  Nargan,  149.  167. 
Shuter  V.  Page,  502. 
Siau  V.  Pigott,  314. 
Sicard  V.  Whale,  104. 

Sigler  et  al.  administrators  v.  Haywood,  566 
Sikes  V.  Ransom,  4. 
Silva  V.  Low,  3G2.  366. 
Sinim's  v.  Barefoot 's  executors.  4'iO. 
Simonds  v.  Cailin,  317.  325. 
Simons  v.  Paine,  233. 
Simonton  v,  Boucher,  12. 

Boucher  et  al.  81 . 
Simpson  V.  Hi<rt,  69.  121.    ' 

Patlen,  315. 
etal.  V.  Geddes,  425. 

Amons  el  al.  535. 
Shannon's  heirs,  515. 
Simpson's  lessee  v.  Ammons  et  al.  535. 
Simsou  V.  Hart,  416. 
Skelton  V.  Brewster,  315. 

Tomkinson,  208.  220. 
Skidmore  v.  Desdoiety,  363. 

et  al.  V.  Desdoiety,  344, 
Skilding  ct  al.  v.  Warren,  214. 


OP  AMERICAN  DECISIONS. 


Skillingerv.  Bolt,  16.  232. 
Skillems  ?.  May's  executor,  408. 
Skinner  v.  Kobt-son,  5. 
Skinner  v.  Sniiih,  514. 

Hendiick,  178. 
Skipwith  V.  Morton,  432.  452. 
Blade  v.  Morgan,  561 . 

Teasdale,  33. 
Slaughter  v.  B.-irnes,  601. 
Slayion  v.  The  Inhabitants  of  Chester,  60r. 
Sleight  T.  lihinelander  et  al.  296. 

Rhinelander,  .348. 
Slingerland  v.  Morse  et  al.  430. 
Siocum  V.  Wheeler,  123. 

Perkins,  43.  617. 
Siocum  V.  The  United  Insurance  Compauy, 

358. 
Sluby  V.  Champlin,  37. 146.  148.  391. 
Small  et  »l.  v.  Hndgen,  83. 
Smallwood  v.  Mitchtll,  124.  160, 
Clarke,  438. 
et  al.  V.  Mitchell,  142.  262. 
Smartle  v.  Williams,  30. 
Smedes  v.  Bank  of  Ulica,  336. 
Smith  V.  Pearce.  285. 

Hubbard,  266. 

Elder,  266. 

Smith,  103,  104.338. 

Brush,  265. 

Brown,  105. 

Williams,  107.  176.  365.  502. 

Fenner,  158. 

Ward,  177. 
,    Allen,  210. 

Thompson,  4. 

Carrington,  4. 

W^alker,  5.  28,  425. 

Jansen,  5. 

Steinback,  6. 

Shumeway,  13.  470. 

Nowells,  28. 

St.  Lawrence,  331. 

Elden,  36. 

Blagge,  63. 

Jones,  69. 

Lewis,  68. 

Whiting,  68. 

Rhodes,  102. 

Lorilard,  48. 

Duncan,  417. 

Freel,  424. 

Barker,  179. 

Crocker  et  al.  441. 

Tooiiev,  315. 

Segar,'340.  452. 

Minor,  467. 

Shackletord,  478.  481. 

Miller,  484. 

Isaacs,  513. 

Porter  et  al.  425. 

Barber,  220. 

Walker  executor,  425. 

Stewart,  595.  .399.  537. 

Lockwood,  566. 

Bowker,  600. 

Hart,  602.  615. 

Niel,  003. 


Ixi 


Smith  V.  Bank  of  Washington,  231.  335. 
Delaware  Insurance  (Jo.  346.  548 
Bell,  355. 
Kewburyport,  358. 
Wi  ight,  370. 
administrator  v.  Ludlow,  425. 
et  al.  V.  Odiin,  344. 

Wright,  187. 
ex  d.  Teller  v.  Lorrilard,  521. 
Burtis,  514. 
Smith  V.  The  Sheriff  of  Charleston  District. 

395. 
Smith's  lessee  v.  Steele,  18. 

Midrlleton  etal.  515, 
Smock  V.  Morford,  416,  417. 
Smodes  v.  llooghtaling,  52. 
Smyth  V.  M'Dow,  228.  236. 

Banks,  282. 
Snee  v.  Price,  42. 
Sneed  v.  Mitchell's  executors,  340. 
Sneider  v.  Geiss,  221. 
Saell  V.  Foussat,  107. 

etal.  V.  Mosses  et  al.  377.  381. 
Rich,  488. 

Delaware  Insurance  Co.  350. 
Snider  et  al.  v.  Croy,  556. 
Snowden  v.  Phoenix  Insurance  Company,  6. 
Snowden  et  al.  v.  The  Phceni.v   Insurance 

Company,  366. 
Snyder  v.  Castor,  303. 
Pauley,  264. 
Hoffman,  116. 
lessee  v.  Hoffman,  116. 
etal.  V.  Croy,  69. 
Sollers  V.  Bowen,  130. 
Solomons  v   M'Kinsty,  118. 
Somner  v.  Wilt,  267.  479.  546. 
Soulev.  Soule,  188. 
Southgate  v.  Burnhara,  89. 
Southwarth  v.  Brailford,  U7. 
Packard,  436. 
Southwick  V.  Stevens,  267.  286.  474,  475. 
Souvenbye  et  ux  v.  Arden  et  al.  152.  171. 
Sparkes  v.  Garigues,  449. 
Speaks  V.  United  States,  255. 
Sjieneer  v.  Saunders,  33. 
Tisne,  39.  45, 
et  ux.  V.  Spencer,  100, 101 . 
Speyep  v.  New  York  Insurance  Compativ, 

354.  360. 
Spottswood  V,  Price,  566. 

Pendleton,  407. 
Spring  et  al.  v.  Coffin,  306. 
Springstein  v.  Schermerhortic,  4'J 

Field,  471. 
Spurret  al.  v.  Parson,  212. 
South  Carolina  Society  v.  Johnson,  178, 
Squires  v.  Riggs,  509. 
Staats  V.  e.vecutors  of  Ten  Eyck,  446, 
iitackpole  V.  Arnold,  190.  194. 
Stafford  Bank  v.  Connell,  143. 
Stakle  V.  Sp()hn,198. 
Standley  etal.  v.  Weaver,  2.30. 

Weaver  et  al.  222. 
Staniford  v.  Hide,  417. 
Stanly  v.  Turner,  516. 
Dunhurst  54C, 


Ixii 


TABLE  OF  CASES 


Stanley  etux.  v.  Kean,  101. 
Stansiard  v.  Groves  et  al.  executors,  268. 
Stansbury  v.  Marks,  433. 
SiHulf  V.  Spring  et  al.  489. 
Starr  v.  Tracev,  236. 
Siarr,"581. 
et  al.  V.  Jackson,  465. 
Knox,  125. 
Staret  v.  Chambers  et  al.  91. 
Starrett  v.  Douglass,  583. 
State  V.  Fellows,  216. 
Hamilton,  216. 
Hasset,  218. 
Briinsor.,  218.  158. 
A.  W.  21. S. 
Nettletwn,  218. 
Coulter,  222. 
Shaw,  225.  227. 
Clark,  231. 
Phelps,  249. 
Ganlner,  249. 
M'Leod,  258. 
Rnwles,  278. 
Street,  285.' 
Bradley,  286. 
Oi'ourn,  143.  158. 
Blodg.t,  143.  158.  218. 
Doherty,  196.  206. 
Ridgely  199. 
Edwards,  202,  203. 
Haywood,  19. 
Moody,  33. 
Long,  44. 
Moore  44. 
Irwin,  44. 
Atkins,  89. 
Gslliard  etal.439. 
Stately  v.  Bai-hite, 
St.  Clair  V.  Jones,  141. 
Steele  v.  Roach,  267. 
Adams,  188. 
»        Phosni.x  Insurance  Company,  230. 
Steinbach  v.  Ogden,  352. 

Rhinelaiider,  234. 
Columbian   Insurance  Compa- 
ny, 6, 199.  277.  278.  347. 
Steigleraan  v.  JefF  ies,  383. 
Sleinraelz  v.  LTnited  States  Insurance  Com- 
pany, 350. 
et  al.  V.  Currey,  214.  263. 
Stephens  v.  White,  6.  407. 
Stephens  et  al.  v.  Cooper  et  al.  176. 

Brooke,  424. 
Sterne  v.  Spaldiog,  450. 
Sterry  v.  Rohinsoii,  336.  327. 
Stetson  V.  Massacluisctis  Mutual  Fire  Insu- 
rance Cii.  365.  368. 
Stevelie  v.  Reed,  64. 
Stevens  v.  Payne,  95. 
Paine,  177. 
Blunt,  328. 

C<il  Insurance  Company,  371. 
adminsirator  v.  Ga\lord,  100. 
et  al.  V.  Cooptr  et  al.  109. 
Win,  315. 
:ftevenson  v.  Nevinson,  2.'59. 
Ilaydeu,  467. 


Stewart  v.  Warner,  102. 

Loveil,  475.  478 
M'Bride,  289. 
Rnlston.  118. 
Butler,  165. 
Doughtv  et  al.  609. 
Edei^337.  404. 
Lee,  449. 
Kip,  208.  224. 
Stiles  V.  Donaldson,  416. 
Stille  V  Lynch,  213. 
Stilson  V.  Tobey,  524. 
St.  John  V.  Standing.  500. 
Stocker  et  al.  v.  Harris,  365. 
Stockham  v.  Jones  et  al.  10.  208.  227. 
Stocking  V.  Sage,  et  al.  92.  314. 
Stoddard  v.  Bird,  479. 
S'oddarl  v.  Smith,  375. 
Stoever  v.  lessee  of  Whitman,  50.  131.  131). 

165   167.  187.  255. 
Stone  V.  Woods,  609. 
Rafter,  417. 
Storrs  v.  Wetmore,  235. 

Witmore,  35. 
Storer  v.  Logan,  214. 

Logan  et  al.  194. 
Gray,  355. 
Hincklev,  566. 
Ratson    141,  142.  188. 
Freeman,  169 
adminisirstoi  v.  Storer  et  al.  566. 
Storms  V.  Snyder,  318. 
Storm  V.  Livingston  498. 
Story  V.  Odin,  492. 

administrator  of  Perrin,  33.  * 
et  al.  V.  Stntlle,  36.  355. 
Statesbury  v.  Co^'enhoven,  92. 
Stothart  v.  Parker,  332. 
Sioii  et  al  v   Alexander,  335. 
Sioughton  V.  Rapalo,  501. 
Stout  v.  Hopping.  36. 
Kussel,"^  288. 
Stoutenburgh  et  al.  v.  Murray,  50. 
Strong  V.  Ferguson,  118. 
Strong  V.  Si)ear,  340. 

et  al.  V.  Stewart,  178. 
Stubb  V.  Burwell,  171. 
Stuliz  V.  Dickey,  187.  503. 
Stump  V.  Roberts,  228. 
Hughes,  146. 
Sturgeon  v.  Waugh,  24,  28. 
Slurgess  v.  Maidand,  19. 
Sturtwart  V   Ballard,  603. 
Stuy  vesant  v.  Tomkins,  et  al.  318.  514. 
Suckly  V.  Dtlafield,  368. 
SuRern  v.  Towusrnd,  503. 
Sulger  V.  Dennis,  18 
Sulivar.t  V.  Alston,  49. 
Sullivan  V.  Bridge,  546. 
Sulion  V.  Cl..rke,  299. 
Sumner  v.  Biiel   475. 

administrator  V.  Williams  etal.  'vi. 
443.  445. 
Sumner  et  al.  v.  Child, 48.  50.  51. 
Surapter  v.  MurrcU,  117. 

Welsh,  408. 
Sui'tell  T.  Brailsford,  4j6, 


OF  AMERICAN  DECISIONS. 


Ixiii 


Sutton  V.  Connolly,  561. 

Blum,  130. 
Siiytlain  v.  The  Marine  Insurance  Co.  360, 
Swan  V.  The  Union  Insurance  Co.  353. 
Swearingcn  v.  Pt-ndieton,  5. 

Birch,  469. 
Swett  et  al.  v.  BoHi-dnrian,  584. 
Swift  V.  Dtan,  211.  '215.  262. 

Hawkins,  410. 
Swigart  V.  Frey  administrator,  73. 
Syburn  v   Slade,  50. 
Syler's  lessee  v.  Eckart,  318. 
Syms  V,  Griffin,  443. 
ButU  ■ ,  42. 
Symonds  v.  The  United  Insurance  Co.  352. 


Tabb  V.  Baird,  521. 

et  al.  V.  Archer,  et  al.  169.  440. 
Archer,  434.  436. 
Tabo  V.  Ferrot,  72. 
Tagert  V.Hill,  266. 
Tainter  V.  Brockwav,  316. 
Talbot  V.  Seaman,  55.  112.  371. 
Talcot  V.  The  Marine  Insurance  Company, 

362.  367.  369.  374. 
Talcot  V.  Commercial  Insurance,  362. 
Taliaferro  V.  Robb,  407. 
Talmadge  v.  Norilirope,  267. 
Chapel  et  al.  558. 
Tanner  v.  Freeland,  560. 
Tappen  v.  Van  Wagoner,  405. 
Kain  et  al.  562. 
Wagoner,  338. 
Tatens  exrs.  v.  Lofton  et  al.  233. 
Tarin  v.  Morris,  340. 
Taunton  &  S.  Boston  Turnpike  Company 

V.  Whiling,  16. 
Taxier  et  al.  v.  Sweet  et  al.  496. 
Taylor  v.  Lowell,  345. 

Giger,  258.  267. 

James,  583. 

Sumner,  .369. 

Peyton,  441. 

Ruinbow,  465. 

Halcomb,  18. 

DundjiS,  S2,  83. 

Meekly,  147. 

Biyden,  83.  331.  533. 

Taylor,  590. 

Savage,  390. 
et  al.  V.  Geary  tt  al.  547. 
Teasdale  v.  Hart,  602. 
Tector  V.  Robinson,  105. 
Telts  et  ux.  v.  Fostei-,  et  al.  132. 
Temple  v.  Temple,  583. 

et  al   V.  Temple,  9. 
Temple's  executor  v.  Elletts  executor,  211. 
Teniposi  V.  Filzgeralil,  314. 
Terry  v.  Huntingtoti,  80. 
Tetter  v.  Rapesnyder,  57. 
Tidmore  et  al.  v.  Bojce  et  al.  208. 
Tillman  v.  Lansing,  6U9. 
Tillotson  V.  Cheetham,  475.  002 
Tilton  V.  Gordon,  68. 
Timrod  V.  Shoolbri  d,  382. 
Titford  V.  Knott,  157 


Thatcher  v.  Dinsmore,  316.  .328.  336. 
Thatcher  et  al.  executors  v.  Gammon,  68. 
Tha)er  v.  Bracken,  335. 

Rogers,  452. 
The  County  of  S;!lop  v.  The  County  of  Staf- 
ford, 238. 
The  Commonw.  alth  v.  Collins,  437. 
The  exrs.  of  Clason  v.  B:iiley,  ei  al.  325. 

R  'gcrs  V.  B'  rry,  185. 
The  Farmers  iit  Mechanics  Bank  v.  Smith, 

184. 
The  Hal.  and   Augusta  Bank  v.  Hauiiltoa 

et  at.  136. 
The  Hartfoi  d  Bank  v  Stedh  m  et  al.  188.333 
The  Inhabitants  of  Canion  v.  Bentel>  ,  248. 
The  Inhabitants  of  Aurundel  v.  M'Culloch, 

489. 
The  Inhabitants  of  Randolph  v.   The  Inha- 
bitants of  Braintree,  49  i. 
The  Inhabitants  of  Slockbridge  v.  The  In- 
habitants of  West  Slockbridge,  18. 
The  Inhabiiiints  of  Worcestor  v.  Eaton,  306. 
The  King  v.  M'Lean,  .S8. 
Lukens,  221. 
The  Lincoln  and   Kenebeck  Bank  v.  Page^ 

335. 
The  Marine  Insurance  Co.  v.  The  United 

States  Insurance  Co.  358. 
The   Marjland   Insurance  Co.   v.   Woods, 

.    106. 
The  N'w  York  Insurance  Co.  v.  Robinson, 

356. 
The  Northampton  Bank  v.  Pepoon,  329. 
The  Ordinary  of  Charleston  District  v.  Cor- 

bett,  566. 
The  Overseers  of  the  Poor  of  Orange  v.  The 

Overseers  of  Springfield,  222. 
The  People  v.  Herriek,236. 

Townsend,  208. 

Denton,  268. 

Runkle,  285. 

Pleas,  566. 

Duiican,39l,392, 

PoylloM,4S0. 

Peirce,  52. 

Wood,  52. 

Huiuphreys,  131. 

Holbroke.  5.  143. 

Pease   199. 

Howe'll,  218,  219.  307.  329. 

405. 
Bill,  225. 
Burdock  et  al.  59. 
Bradt,  509. 
The  President   of   the   Portland   Bank   v, 

Slubbs  et  al,  502. 
The  Proprietors  of  Kenebeck  Purchase  v. 

CmII,  18.  172.  513. 
The  Proprietois  of  Monumi  Great  Bc-icK 

V    R(jgcrs,  504. 
The  Slate  v.  Lockier,  266. 

O'Driscoll,  268, 
Wills,  14,  20S. 
Hopkins,  268. 
Smith,  279. 
Gaillaird,37C. 
Findlay,  544, 


Ixiv 


TABLE  OF  CASES 


The  State  V.  Gor.lon,  410. 
Kearny,  454. 
Tlioiiison,  44. 
Phelps,  44. 
Jenkins,  44. 
Allen,  157. 
Wills,  175. 
Al'  xaniJer  et  al.  198. 
Slullnigs  et  al.  199. 
Non  IS,  199. 
Fisher,  200. 
Ridge  ly,  201. 
Bailey,  202. 
Alexander,  225. 
Quarrell,267. 
The  Town  of  Canaan  v.  The  Green  Vv^oods 

Turnpike  Co.  fi6. 
The  Trustees  of  Lansingburgh  v.  Williaid, 

231. 
The  Trustees  of  the  Methodist  Episcopal 

Church  et  al.  v.  Jacquires  et  al.  152. 
The  Union  Bank  v.  Hy<le,  175.  342. 

U.  Slates  Bank,  304. 
The  United  Insurance  Co.  v.  Senti,  359. 
Lenox,  358. 
The  United  States  v.  Smith,  259. 
Thomas  v.  Perry,  439. 

Marshall,  609. 
De  Graffenreid,  480,  481. 
Pearce,  208. 
Wells,  315. 
Dyott,  32. 
Rumsey,  66,  474. 
lessee  v.  Horlocker,  152. 159.  164. 
Thompson  v.  Jameson,  102.  287. 
Stewart,  99.  109. 
Musser,  52.  111.  452. 
Warder,  115. 
The  Phdadelphia,212. 
Tod,  31S. 

Gregorv,317,  318.  491. 
Gay  lard,  328.  430. 
Robertson  et  al.  330. 
Robertson,  338. 
Ketcham,  178.  339. 
Davenport,  413. 
M'Cord,  459. 
Lock  wood,  440. 
Cook,  496. 
Shoeman,  581. 
Uutton,  502. 
et  al.  V.  Hopkins etal.  299. 
Church,  13. 
Bullock,  57.  61.  440. 
Young,  104. 
et  al.  V.  Fausset,  172. 
Tliorndike  v.  United  States,  430. 
Thorn  v.  Blanchard,  469.  473. 
Thome  et  al.  v.  Deas,  405. 

Wood  hull,  329. 
Thornton  v.  Edwards,  130. 
Thorp  V.  Bu'ling  et  al.  495. 
Thurston  v.  Mnrrav,  108. 
Hancock,  492. 
Koch,  366. 

Tin  Columbian  Insurance  Com- 
pany, 366. 


Thurston  v.  Hancock  et  al.  491. 
Thweatl  eial.  v.  Finch,  6. 
Tindall's  executors  v.  Johnston,  328, 
Tippetls  V.  Widker,  42. 
Tobey  v.  Barber,  172.  409. 

Webster,  503. 
Todd  et  ux.  v.  River's  executors,  174. 
Tom  V.  Smiih,  359.  365. 

Goodrich  et  al.  392. 
Tompkins  v.  Beers,  208. 
Tomkins  v.  Bars,  233. 
Tonsey  v.  Preston,  284. 
Toppan  V.  Atkinson,  345. 
Toomer  v.  Long,  424. 
Topper  V.  Taylor  et  al.  9. 
Torre  v.  Summers,  13.  267. 
Torrey  v.  Fnller,  137. 
Towle  administratrix  v.  Lovet,  557. 
Towle  et  al.  v.  Stevenson,  159. 
Tower  V.  AVilson,  160. 

Durell,  335. 
Town  V.  Goodrich,  300. 
Town  of  Hampton  v.  Town  of  Windham,  6, 
Townsend  v.  Phillips,  131.  358.  603. 
Town  ot  Waterman  v.  Town  ot  Walerbury, 

117. 
Tracy  v.  Strong,  432. 

Hawkms,  472. 
Treadwell  el  al.  v.  Bulkley,  189. 
Treasurer  of  the  State  v.  Hali,  211. 
Trigg  V.  Lewis's  executors,  83. 
Tioiter  V.  Howard,  603. 
Troward  ?.  Martin,  224. 
Trowbridge  V.  Royce,  514. 
Trowell  V,  Castle,  99. 
Trustees  of  Huntingt  n  v.  Nicoll,  225. 
Trustees  of  Paris  v.  Trustees  of  Pens,  305. 
Tubeville  v.  Self,  416. 
Tuckerv.  Welsh,  189. 

Woods,  377.  405. 

Maxwell,  172. 

Juhel  et  al.  348. 

Rundall,339. 

Cracklin,290. 
Tuckers  v.  Oxley,  417. 
Turabull  V.  Ross,  102. 
Tune  V.  Williams,  307. 
Tunnell  et  ux.  v   Watson  et  ux.  ". 
Tunno  v.  Rogers,  33. 
Sulkle\  ,42. 
et  al.  V.  Laque,  42. 
Turbeville  v   Long,  59. 
Turner  V.  Hubtiell,  315. 

F.mlall,4.  608. 

M'adihngton,  63. 

Tullle,  ■>81. 

Eslcs,  543. 

Turner,  583. 

Slip,  147. 
Turrell  v.  Moonev,  453. 
Turnpike  Corp.  v.  Whiting,  141. 

Road  Co.  V  Myers,  150. 
Turpin  V.  Thomas,  69. 
Tuthill  V.  Davis,  214. 
Tuit  V.  Lewis,  42. 
TuUlc  V.  Love,  205.  3S7. 

Russell,  197. 


OF  AMERICAN  DECISIONS. 


Ixv 


I'uHle  V.  Beebee,416. 
Bigelow,  404. 
Twambly  v.  Henelev,  65.  214.  445. 
T>kr  V.  Binney,32S. 

Ulmer,  39.  &5.  264. 
U. 
Ulen  V.  Kitredge,  316. 
Ulmer  v.  Leiand,  482. 
Umbehocker  v.  Russell,  286. 
UndeihiU  v.  "Van  CortlamI  et  al.  257. 
Van  Cortland,  258. 
et  al.  V.  Van  Cortland  et  al.  117. 
United  Insurancp  Co.  v,  Robinson,  359. 
United  States  v.  Gillies,  4. 

Hayward,  9. 

Bacbelder,  9. 

Mitchell,  15.  17.  144. 

Little,  17.  125. 

Tardy,  34.  43. 

Johns,  58.  111.  125.158. 

The  Paul  Shearraan,  167. 

The  Jason,  170. 

Thomson  et  al.  189. 

La  Jeune,  195. 

Brackens,  199. 

Coolidge,  208. 

Wells,  222. 

Caldwell,  279. 

Cooper,  280. 

Lakeman,  285. 

Porter,  288. 

Colt,  449.  553. 

"\  igol,  889. 

Burnhacu,289. 
Upton  V.  Vail,  483. 
Urquhart  v.  M'lver  et  al.  499. 

V. 

Vail  V.  Lpwis  et  al.  289.  390.  465.  600.  620. 

Mum  ford,  307. 
Van  Alen  v.  Rogers,  537. 
Amkin  v.  Westtall,  468. 
Bracklin  v.  Fonda,  483. 
Bramer  v.  Cooper,  433. 
Beiithovsen  et  al.  v.  Crapser,  377. 
Vance  V.  Walker,  177.  316. 

Feariss,  31. 
Vandenhewvel   v.   Union   Insurance  Com- 
pany, 160.  360. 
Vandenheuvel  v.  Church,  106.  346.  356. 

United    States    Insurance 
Company,  345,  346. 
et  al.  V.  Smith,  347. 
Vandervoot  v.  Smith,  265. 

Col.  Insurance  Co.  92. 
et  al.  Smith,  109. 
Vandeusen  et  al.  v.  Vandeusen,  227. 

et  al.  Van  Slyck  et  ux.  10.  227. 
Vanduzon  v.  Linderman,  479. 
Van  Dyck  v.  Van  Beiiren,  47.  50. 

Van  Bf  uren  et  al.  163.  516. 
Van  Evour  v.  The  State,  226. 
Van  Gordon  t.  Van  Gordon,  101. 
Vanhorn  v.  Frick,  3.  510. 
Vsnlean  v.  Vanlean,  »63 
Van  Nuyes  t.  Terhune,  208.  215, 


Van  Ness  v.  Forrest,  336. 

Rcirasdyk  v.  Kane,  343. 

Rens.selaer  v.  Dole,  469. 

Rough  V.  Van  Ar&daln,  103. 

Saphorst  v.  Peace,  304. 

Steiiibergh  v.  Koriz,  467. 

Slyck  V.  Hfigebooin,  610. 

Sant  V.  Boileau,  230. 
Vnnuxen  et  al.  v.  Hazi<  hurst,  104. 
Van  Vechten  v.  Hopkin-'-,  474. 

Groves,  448. 
Van  Valkenburgh  v.  Rouk,  433.  436.  439. 
Vassey  V.  Ball,  107.  369. 
Vaugham  V.  Havens,  468. 
Vaughan  et  al.  v.  Blanchard  et  al.  397. 

et  u.\.  V.  Wilson,  541. 
Van  Winkle  v.  Kitchum,  227.  434. 
Verplank  et  al.  v.  Sterry  tt  ux.  152. 
Vigours  V.  Pnlmer,  469. 
Vick  V.  Whiiefield,  470. 
Vickery  v   M' Knight  et  al.  167. 

M'Knight,  61.143. 
Vincent  v.  Geimond,  322. 
Vincent  v.  Huff's  lessee,  83. 

lessee  ot  Huff,  4.  262. 
Violett  V.  Paitnn,  324. 
Vischer  v.  Van  Alien,  510. 
Vooght  V.  Winch,  66. 
Vos  V.  The  United  Insurance  Co.  363. 
Vosburgh  v.  Thayer,  31. 
Vroman  v.  Phelps,  177. 

W. 

AVade  v.  Wade,  103. 

Wadham  v.  Vanderhooken,  51. 

Wadharas  v.  Burnhams,  lO'i. 

Wadsworth  v.  Woodford, 298, 

Wadworth  v.  Sanibrd,  4. 

Wager  v  Milter,  603. 

V/aggoner  v.  Gray's  administrators,  211. 

Wailing  V.  Toll,  36. 

Wainwright  v.  Reed  et  al.  178. 

Wail  V.  Garland,  5. 

M'Neil,263. 
Walte  V.  Harper,  403. 
Wakefield  v.  Lilhgow,  412. 

Martin,  345. 
Wakely  V.  Hart  et  al.  208.  227. 
W  alden  et  al.  v.  Shtrbime,  31.  229. 

V.  Phosnix  Insurance  Company, 357 
Le  Roy,  370. 
The  heirs  of  Gratz,  429. 
Walder  et  al.   v.  The  Phoenix  Insurance 

Company,  364. 
Walder  V.  Le  Roy, 305. 
Waldron  v.  Hoi)pfcr,  488. 

M'Carty,  444. 
Waldo  V.  Long,  81. 

Muniford,  451. 
Walker  v.  Winn,  469. 

Kendall,  6.  566. 
Hawkins,  557. 
Butz,  377.  492. 
Leighton,  4l7. 
Walker's  administrators  v.  Hawkins,  497. 
«;xecutors  v.  Aicklin.  376, 


Ixvi 


Wallace  v.  Rippon,  441-. 
Barker,  171. 
Child  ft  al.  262. 
Depau  et  al.  363. 
et  al.  V.  Duffield  et  al.  564. 
Duffield  et  ux.  516. 
Wallis  V.  Mease,  470. 

DelaiiCfv,  153. 
Wain  V.  Aiilhon;,  415. 
Walsh  V.  Fen  and,  103. 

el  al.  V.  Nourse,  105. 
Walt  V.  Greenlee  et  al.  489. 
Weaker  V.  Holiuan,  27. 
Walton  V.  Singleton,  465. 

bhtlly,  '^13. 
Walthall  V.  Johnson.  36. 
Ward  T.  Center,  483,  484. 
Hollaro,  428. 
Clark,  467.  472. 
Wards  v.  Wmshop,  194. 
W^ai'der  v.  Horion  et  al.  366. 

Carson's  executors,  330. 
Parker  et  al.  118. 
etal.  V.  Arell,430. 

Tucker,  .'^03.  406. 
Wardel  ?.  Fasdiek  et  al.  484. 
Waring  v.  Warren,  160. 
Warren  v.  The  United  Insurance  Company, 

362. 
"Warren  v.  Leeland,  495.  501. 
Merry,  213. 
Lynch,  153.  339. 
Wasburn  \,  Merrills,  178. 
Waterbury  v.  Clark,  237. 
Waterhouse  v.  Waite,  602. 
Waterman  v.  Robinson,  16.  495. 
Waters  v.  Brown,  160. 
Millar,  406. 
Stewart,  535. 
Waters  et  al.  v.  Stewart,  609. 
Watham  v.  Penebaker,  439. 
Watkins  v.  Baird,  440.  479. 
W^almore  v.  While  et  si.  492. 
Watson  V.  The  Marine  Insurance  Compa- 
ny, 349.  370   374. 
Watson  V.  The  Insurance  Company  of  North 

America,  355. 
Watson  V.  Anderson,  453. 
Loring,  330. 
Bioren,  493. 
r)elafiekl,92.  368, 
etal.  V.  Bojies,  168. 

Todd  et  al.  602. 
Ale.xaiider,  397. 
Watson  et  al.  v.  Insuranct-  Company  of   N. 

America,  17.  374. 
Watts  V.  Willing,  3.34.  452. 
Weaver  v.  Bt-ntkj,  305,  306. 

L«wri  nee,  501. 
Webb  V.  Granville,  30. 

Danforth,  175.499. 
Duuforth,  'il3. 
Fitch,  222.  416. 
Webber  v.  Ives,  266. 

Weble)  tt  al   v   Longstaff's  executors,  176, 
Webster  v.  M  f^in  is,  39. 
Massey,  lUo. 


TABLE  OP  CASES 


Webster  v.  Lee,  199.  230.  336. 

Weed  V.  Ellis,  115. 

Weiglj's  administrators  v.  Weir,  190. 

Weiser  v.  Leiseiii;er,  496. 

Welch  et  al.  V.  Watkins,  376. 

Welden  et  al.  v.  Buck  et  al.  333. 

V.  Buck,  262. 
Weld  V.  Bartlelt,  607. 
W -llord  V.  Rose,  444. 
W'lles  V.  Dexter,  451. 
Willis  V.  Newbold,  516.  518. 
D'-ming,  317. 
Tucker,  236. 
Lane,  211. 
Welsh  V.  Watkins,  331, 
Barrett,  135. 
Wendover  et  al.  v.  Hogeboora  et  al.  380. 
Wescott  et  al.  v.  Cady  et  al.  109. 
West  V.  ConuQons,  380. 

Randall,  210. 
Wetherspoon  v.  Isabell,  288. 
Wetherslon  v.  Edgingion,  10. 
Wetmore  v.  White,  318. 

White  et  al.  314. 
Rol)ioson,  505 
Wharara  v.  Routledge,  142. 
Wharton  et  al.  v.  Fitzgerald,  395. 
Wheelwright  v.  Depeyster,  106.  299.  381 . 
Wheeler  v.  Van  Hnuton,  70   115. 
Wheelock  v.  Wheelwright,  498. 
Whitaker  v.  Cone,  403. 

Whitaker,  559. 
Whipple  V.  Foot,  320.  609. 

Levelte,  173. 
Whiteacre  v.  M'llhenny,  59. 
White  V.  Dingley,479. 
Bailey,  428. 
Chambers,  545. 
Beshing,  21. 
Bishbn.g,91. 
Johnson,  602, 
Lovejov,  60, 
Kiblmg',  91. 
Ward  el  al    67. 
Camfield,  104. 
Ewen,  50. 
Eagan,  171. 
et  al.  V.  Kyle's  lessee,  515. 

Skinner,  144. 
executor  v.  Derby,  210. 
Whitefield  v.  M'Leod,  382. 

Walk,  32. 
Whiteman  v.  M'llhenny,  2. 
Whitehead  v.  Church,  437. 
Whiting  V.  Cochran,  5.  57. 
M'Donald,  305. 
Whitney  v.  Ferns  et  al.  229. 
Whitwell  V.  \Vyer  et  al.  37. 

etal.  V.  Johnson,  332. 
Wickham  v.  Waterman,  546. 
Widdifield  V.  Widdifield,  172. 
Widgely  V.  Munroe  et  al.  213. 
Widgery  v.  Munroe,  328. 

Munroe  et  al.  338, 
Widrig  V.  Oyer  et  ux.  468. 
Wigglesworth  t.  Steers,  408. 

Steera  et  at.  439. 


OF  AMERICAN  DECISIONS. 


Ixvii 


Wikoffetal.  V.  Cox,  118. 
Wilbur  V.  How,  405. 
Wilcox  V.  Teneyck,  443. 
Rootes,  593. 
AVise  et  al.  211. 
Calloway,  533. 
Ray,  59.  l45. 
Wray,  69. 
et  al.  V.  Union  Insurance  Co.  353. 
Wilde  V.  Cantillon,  503. 
Wild  man  v.  Gl«ssop,  286. 
Wilford  V.  Rose,  441. 

et  al.  V.  Grant,  392. 
Wilkes  V.  Jackson,  300. 
Ferris,  .?86. 
etal.  V.  Ferris,  322. 
Wilkie  V.  llosevelt,  213. 
Wilkings  v.  Murphy,  559. 
Wilkinson  v.  Oliver,  434. 
Scott,  188. 
et  al.  V.  Nicklin  etal.  330. 
Williams  v.  Smith,  352.  364. 
Delafield,368. 
Hassey,  11. 
Craig,  118. 
Price,  7. 
Rogers,  608. 
Davis  et  ux.  147, 
Paschall,  118. 
Green,  115. 
Spencer,  620. 
et  al.  V.  Storrs,  100. 

Hamilton,  417. 
et  ux.  V.  Mayer  et  ux.  471 . 
Williams's  administrators  v.  Bradeley,  228. 
Williamson  et  al.  v.  Tuono  et  al.  364. 
Willing  V.  Brown,  71. 

Sweasey,  264. 
et  al.  V.  Consequa,  41.  93.250. 233. 
383. 
Wlllington  v.  Gale,  534. 
Willoughby  v.  Corleton,  149, 
Wills  V.  Tucker,  2. 

Church,  471, 
Wilson  V.  Hurst's  executors,  83, 
Wilson,  31. 
Boerara,  33, 
Daniel,  5. 
•Clements,  302. 
Appleton,429, 
Weathersby,  509, 
Speed,  211. 
Watson,  596. 
Stakes  etal.  411. 
Hamilton,  436. 

Lenox,  214.  335.  337,  340,  4^. 
Holmes,  336, 
Lyles,  468, 
Marsh,  483. 
Hogg,  469. 
et  al.  V.  Conine,  63.  111.  497. 

Reed,  411.500. 
lessee  v.  Campbell,  508. 
Willson  V.  Force,  381. 
Wilt  V.  Franklin,  49    167,  190,  603. 
Winchester  V.  Hackley,  416.  418. 


AVinchell  v.  Allen,  557. 
Winder  v.  Little,  24. 
Windham  v.  Chetwind,  234,  235. 
Wiiidover  el  al.  v.  Robbins,  11.  483.  485. 
Winslow  V.  The  Commonwealth,  44.  309, 
Loring,  607. 
Anderson,  434. 
Respu'ulicam,  600. 
Winston  v.  Francisco,  302. 
Winthrop   v.    Union    Insurance   Compaoy 

23.  187. 
Winthrop  v.  Pepoon  et  al.  336. 
Wisner  et  al.  v.  Wilcocks  etal,  508. 
Wise  V.  Withers,  620. 
Wilcox,  483. 
Wistar  v   Walker,  230, 
Winton  V.  Saidler,  213. 
Wiiherington  executory,  Williams,  500. 
Witherinton  v    M'Donald,  194. 
WitheBS  V,  Gillespy  ,  32.  142. 

executor  V,  Withers  executor,  450. 
Witter  V.  Brewster,  57. 
Wolcottv  HhII,  470, 
Woltv   Rodiler,  470. 

Caroihers,  17. 
WoUord  V.  M-Dowell,  328. 

Greenlee,  416. 
Wolverton  v.  The  Commonwealth,  602, 
Wood  V.  The  Lincoln  and  Kenebeck  Insu- 
rance Company,  357. 
Wood  V,  Drury,  149. 

Slrictland,  160. 
Roach  et  al.  159. 
Reasants,  172, 
Davis,  65, 
Suttrell,  335.  340. 
Vance,  484. 
Pleasants,  125. 
Roach,  15. 
Woodbridge  v,  Austin,  9.  111.  329. 

Wright,  103, 
Woodhull  V.  Holmes,  213,  214, 
Woodmassv,  Mason,  110. 
Woodruft'v.  Whittlesey,  35. 
Woods  V,  Nixbn,  501. 

Van  Rankin,  293. 
Courier  et  al.  125.  386. 
et  al,  V.  Lane  et  al,  521. 
Woodward  v,  Woodson's  heirs,  5. 
Pain  etal.  21. 
Quackenbas,  510. 
Wood  worth  v.  Lord  Cobham,  27. 
Kissam,  497. 
et  al.  V.  Janes  et  al,  403 . 
Worcester  v.  Eaton,  213. 
Woring  v.  Wanen,  235. 
Work  V.  Gi  ier,  169.  172.  375. 

et  al,  V.  Marclay,  215, 
Worner  v.  Robinson,  267. 
Wren  v.  ThDmson,  57, 
Wright  V,  Wright,  147. 

Sharp,  31,  30C. 
Stephens  et  al.  11. 
Molt  et  al.  57. 
Cooper,  299. 
Kerr  et  ux.  540, 


Ixviii 


TABLE  OF  CASES,  See. 


Wright  V.  Towers,  68.  304.  455. 

et  ux.  V.  Rogan,  145. 
Wroc  V.  Harris,  602. 

Washington,  5,  6. 
Wrait  V.  Gore,  478. 
Wjcoff  V.  Longhead,  408. 


Yarboroiigh  v.  Beard,  62.  143. 
Y'-alon  V.  Fpt,  110. 
Yerby  v.  Yerbv,  593. 
Young  V.  Biack,  6. 

Bank  of  Alexandria,  55. 

Kenyon,  56.  175.  307.  375.  426. 


Young  V.  Gregory,  67.  479,  480. 
Hawkins,  306.515. 
Drew,  509. 
Preston,  302. 
Willing  etal.  54C. 
Adams,  .327. 
et  al.  V.  Black,  f>6. 

Corel!,  483. 


Ziele  et  al.  v.  Campbell,  299 
Zobirtkie  v.  Bander,  293. 
Zuber  V.  Gei^er.  258. 


A 
COMPENDIUM 


OF  THE 


LAW  OF  EVIDENCE. 


CHAP.  I. 


OF  THE  GENERAL  RULES  OF  EVIDENCE. 


IN  almost  every  case  which  presents  itself  for  the  considera-       Ch.  I. 

tion  of  a  Court  of  justice,  some  fact  is  disputed  by  the  litigating  I'«tro 'uctory 
•'  11  1        Observations. 

parties  ;  and  the  truth  being  unknown  to  those  who  are  to  de-  _________ 

cide,  recourse  must  be  had  to  the  testimony  of  others.  As  this 
testimony  is  corroborated  or  opposed  by  the  good  or  bad  cha- 
racter of  the  witnesses  who  give  it,  by  their  concurrence  or  con- 
tradiction of  each  other  ;  or  by  the  circumstances  and  probabili- 
ties of  the  story  they  relate  ;  the  mind  of  the  hearer  arrives  at  a 
greater  or  less  degree  of  certainty  ;  and,  weighing  these  consi- 
derations together,  is  enabled  to  pronounce  on  the  truth  or  falsity 
of  the  fact  in  dispute. 

The  law  of  England  has  committed  the  power  of  estimating 
the  weight  a.nd  rredii  of  tho  testimony  ao  given  to  twelve  persons, 
indifferently  chosen  from  among  the  people,  and  sworn  to  decide 
according  to  the  evidence  which  is  laid  before  them  :  and  as 
their  judgment  must  in  general  be  formed  on  the  circumstances 
of  each  particular  case,  and  can  seldom  be  influenced  by  the 
authority  of  former  decisions,  I  shall  have  occasion  to  say  but 
little  on  this  part  of  the  subject. 

In  some  cases,  however,  our  Courts  of  justice  have  laid  down 
rules  for  the  direction  of  juries,  and  have  said  that  the  proof  of 
certain  circumstances  shall  be  sufficient  to  raise  a  presumption 
of  other  facts  which  are  not  expressly  proved.  Though  these 
rules  are  founded  on  general  principles  of  reason,  to  which  the 
B 


2  GENERAL  RLXts 

Cb.  I,  understanding  of  every  man  must  immediately  assent,  they  may 
ObsInvationT  nevertheless  be  considered  as  settled  rules  of  law,  depending  on 
_______  authority  ;  and  as  such  the  peculiar  study  of  those  whose  pro- 
fession it  is  to  assist  in  the  administration  of  justice. 

There  is  indeed  one  species  of  evidence,  the  duty  of  estimat- 
ing the  weight  and  effect  of  which  belongs  wholly  to  the  Judge; 
and  in  which  the  jury  have  no  concern  whatever.  Matters  of 
record,  if  put  directly  in  issue,  are  tried  by  the  Court,  and  when 
they  come  incidentally  before  a  jury  are  considered  as  conclu- 
sive of  the  facts  contained  in  them,  and  not  to  be  disputed  by 
any  other  evidence.  The  effect  of  these,  therefore,  depending 
entirely  on  legal  reasoning,  will  necessarily  require  no  inconsi- 
derable part  of  our  attention. 

But  the  principal  subject  for  the  consideration  of  a  practical 
lawyer  is  the  form  in  which  evidence  is  to  be  produced,  and  its 
admissibility.  This  is  necessarily  in  all  cases  a  pure  question 
oi  laio  ;  it  can  never  depend  on  any  general  and  universal  prin- 
ciples, but  must  always  be  governed  by  certain,  fixed,  and  arbi- 
trary rules.  These  rules  can  only  be  collected  from  former 
decisions,  and  the  Judge  alone  is  competent  to  determine  how 
far  they  are  applicable  to  the  particular  case.(«) 


(a)  The  Court  will  always  leave  it  to  the  jury  as  their  province  to  Jeterraine  the 
character  of  the  witness,  and  the  credit  due  to  him,  except  in  peculiar  cases,  Fehf* 
les.  V.  Good,  2  Binii.  Hep.  495.     Rogers  v.  Briley,  1  Hayw.  Rep.  256. 

But  in  Consequa  v.  Willing  et.  al.  1  Peters^  Rep.  225,  it  was  held,  that  the  Court 
may  give  an  opinion  to  the  jury  on  the  weight  of  evidence,  or  they  may  decliae  to 
do  SO;  and  if  it  is  doubtful,  it  is  most  proper  to  leave  it  to  the  jury. 

In  Ross  V.  Gilletux.  I  JVash.  Rep.  90,  the  rule  in  Virginia  is  laid  down  that 
■where  the  question  depends  on  the  weight  of  evidence,  the  jury,  and  not  the 
Court,  are  exclusively  and  uncontrovertably  the  judges.  S.  P-  Keel  et  ul.  v.  Her- 
bert, ibid.  20.3.  Blincoe  v.  Berkeley,  1  Call.  Rep.  405.  Bogle  v.  Sidlivant,  ibid. 
561.  Martinet  al.  v.  S/over,<2  Do.  514.  Mistiny.  Richardson,  3  /Jo. 206.  Fishei^'s 
exs.  V.  Duncan  et.  al.  1  R.  &  Munf.  Rep.  563.  JVItiteacre  v.  JlI'Menny,  iMiaif. 
Rep.  310.  Holtings-wurclns  v.  jjunbar,  s  Jjo.  lyg.  I'reatuii.  y.Jiuivcn,  6  Do.  Q.77., 

Unless   it  is  withdrawn  from   their  cognisance  by  a  demurrer  to  the  evidence. 

ibid.     ILt  \ide  Briggers  Y.  .'llderso7i,  1  H.&.Munf.  Rep.  54.    Jit-Rae's  exs.  \. 

Wood  ex.  ibid.  5+8.  Harda-ivay  v.  Manson,  2  Mimf.  Rep.  230. 

The  law  in  JVoi^t/i  Carolina  appears  the  same.  Rogers  v.  Briley,  1  Hayw.  Rep.  25". 

Illegal  testimony  ought  never  to  go  to  the  jury.     Lee  v.  Tapscott,  2  Wash.  Rep. 

281.  Broimet  al.\.  JMuy,  1  Mnnf.  Rep.2S8.    Penjields.   Carpender,  \3  Johns. 

Rep.  .350.     Miller  v.  Starks,  ibid.  517.    Jn>ine\.  Cook,  15  Do.  239.    Et  vide 

Bemoney  v.  Walker,  1  Coxe's  Rep  33.  Smith  v.  Carrington,  4  Cranch's  Rep.  70. 

A  Judge  may  give  an   opinion  on  facts,  but  not  a  direction  to  the  jury.  Porter  v. 

M-Ilroy,  4  Serg.  &  R.  Rep.  442.     Et  vide  JV.  York  Firemen  Ins.  Co.  ▼.  Wal- 

den,  12  Johns.  Rep.  513. 

Whether  there  is  any  evidence,  is  a  question  for  the  Judge;  whether  it  is  suji- 
cient,  is  for  the  jury.  Vide  Wills  v.  Tucker,  3  Binn.  Rep.  370.  3*3.  Roseboom  v. 
Billington,  17  Johns.  Rep.  187.  James  v.  Harvey,  I  Core's  Rep.  2£3.  Harper  t. 
Hampton,  1  Har.  &  Johns.  Rep.  622.     - 


OP  EVIDENCE.  a 

if  he  mistake  the  law  and  admit  a  witness  who  is  not  compe-       ch,  I. 
tent,  or  evidence  which  is  not  admissible ;  or,  on  the  contrary.  Introductory 
reject  evidence  which  he  ought  to  have  admitted,  the  general  ^'^''^^'^''tions. 
mode  of  proceeding,  which  has  of  late  years  been  adopted,  is  to  '~~~~~~ 
move  the  Court  for  a  new  trial.  But  this  is  not  the  only  remedy 
the  party  has  ;  he  may,  by  Stat.  Westminister  2,  tender  a  bill  of 
exceptions  to  the  opinion  of  the  Judge,  which  he  is  obliged  to 
seal,  and  then  the  question  goes  immediately  to  a  Court  of  Error. 
So,  if  the  party  against  whom  the  evidence  is  given,  admit  the 
legality  and  truth  of  it,  but  contend  that  it  is  not  sufficient  to 
maintain  the  issue,  and  the  Judge  leaves  it  to  the  jury,  with  di- 
rections to  tind  against  him,  he  may  then,  also,  tender  his  bill  of 
exceptions.(6) 


It  is  discretionary  with  the  Judge  whether  a  witness  may  be  examined  after  de. 
lendant's  counsel  have  summed  up  the  evidence.    Alexander  v,  Byron,  2  Johns. 
Cas.  318.  Duncan  v.  M'  Ciillough,  4  Serg.  &  R.  Rep.  482. 
/"    On  an  indictment  for  larceny,  after  tht-  Deputy  Attorne)  General  had  closed  the 
U  evidence,  and  the  defendant's  counsel  had  summed  up,  the  Court  allowed  further 
I   evidence  to  be  given  on  behalf  of  the  Commonwealth.     Common-wealthy.  Texter. 
1   2  Broxune^s  Rep.  247. 
V     The  strict  rules  of  law,  with  regard  to  evidence,  ought  not  to  be  extended  to 
mercantile  transactions.  Riche  et  al.  v.  Broadfield,  1  Dall.  Rep.  17.  5.  P.  Amold 
V.  Anderson,  2  Yeates'  Rep.  9J. 

Necessity,  either  absolute  or  moral,  is  sufficient  ground  for  dispensing  with  the 
usual  rules  of  evidence.  Per  Tii.ghman  C.  J.  4  Bin7i.  Rep.  326. 

The  maxim  nefno  allegans  turpitndinem  miam  midiendus  est,  does  not  apply  to 
witnesses.  Brown  v.  JDowning,  4  Serg.  &  R.  Rep.  497. 

Evidence  must  be  relevant  to  the  matter  in  issue.  Coe  v,  Hutton,  1  Serg.  ^.  R^ 
Rep.  298. 

If  the  Court  is  divided  in  opinion  on  the  admissibility  of  evidence,  it  must  be  re- 
ceived. Les.  ofMiUigan  v.  Dickson,  1  Peters''  Rep.  434,  in  note Am.  Ed. 

(6J  If  the  opinion  of  a  Judge  is  filed  of  record,  according  to  the  provisions  of  the 
Act  of  24th  February,  1806,  (4  Sm.  Laivs,  206)  it  is  not  necessary  that  a  bill  of  ex- 
ceptions should  be  taken  previous  to  a  writ  of  error.  Downing  v.  BaUtwin,  1  Serg. 
&  R.  Rep.  298. 

There  is  nothing  however  to  prevent  a  bill  of  exceptions,  although  the  opinion  of 
the  Court  is  filed  of  record.   Bussler  v.  JViesly,  1  Serg.  £if  R.  Rep.  431. 

A  Judge  who  files  his  opinion  according  to  the  Act,  is  not  bound  to  return  his 
notes  of  the  evidence,  given  on  the  trial,  idid. 

A  writ  of  error  lies  in  all  casts,  in  which  a  Court  of  record  has  given  a  final  iudg- 
ment,  or  made  an  award  in  nature  of  it.  Commomuealth  v.  Judges  of  Common  Pleas 
3  Binn.  Rep.  273. 

But  it  ought  to  be  on  some  point  of  law,  arising  on  a  fact  not  denied,  in  which  ei- 
ther party  is  overruled  by  the  Court.    Graham  v.  Cammun,  2  Cuines^  Rep.  IGS. 

Quere,  Whether  the  landlord  of  a  defendant  in  eji-ctment  who  has  taken  the  de- 
fence of  the  suit,  but  is  not  parly  to  the  record,  can  sue  out  a  writ  of  error.  Vanhoni 
V,  Frich,  3  Serg.  &  R.  Rep.  278. 

Apai  ty  has  a  rii;ht  to  ask  the  opinion  of  the  Court  on  any  point  of  law  rel.vant  to 
the  issue,  and  a  refusal  to  give  it  is  error.  Shaffer  v.  Landis,  1  Serg,  ij  R.  Rep.  449, 


^  GENERAL  RULES 

Ch.L  But  the  most  usual  method,  when  the  evidence  is  all  on  one 

Introiiuciory  side,  is  to  demur  to  it,  which  takes  the  question  to  the  Court 

Obs  •  •  uiniis. 


Brown  v.  Campbell    ibid-  176.     Hamilton  v.  Minor,  '2  Do.  70.  Vincent  v.  Les.  of 
Huff,iDo.'2'ii. 

When  a  question  is  disiinctly  proposefl  to  the  Court  below,  it  is  error  to  refuse  or 
evade  giving  a  distinct  answer.  Smith  v.  Thompson, '■I  Serg.&  R.  Rep.  49.  Pomers 
V.  JM-Ferro7i,  ibid.  44. 

Qiiere,  Whether  the  Supreme  Court  will  reverse  tor  error,  on  a  point  in  which 
the  law  permits  the  Court  below  to  exercise  their  discretion.  Duncan  v.  Jil'  Cul- 
hugh,  4  Serg.  &  R.  Rep.  48'2. 

The  eranting  or  refusing  an  amendment  in  cases  in  whiob  the  Court  below  exer- 
cise a  rliscietionarj'  power  is  not  assignable  as  error.  Ordroneanx  v.  Prady,  6  Serg. 
&  R.  Rep.  510. 

The  opinion  of  a  Judge,  concerning  facts  delivered  in  his  charge,  is  not  the  subject 
of  a  writ  of  error.  If  he  express  an  opinion  on  facts,  not  warranted  by  the  evidence, 
the  only  remedy  is  by  a  motion  for  a  new  trial.  Rurd  v.  Dunsdale,  .3  Binn.  Rep, 
80.  Long  V  Ramsay,  1  Serg.  &  R.  Rep.  7-2.  Brown  v.  Campbell,  ibid.  176  Gra- 
ham V.  Graham,  ibid.  350  Hamilton  v.  Minor,  2  Do.  70.  Renn  v.  Penn.  Hospital, 
ibid.  413.   Poormon  v.  Smith''sexs.  ibid.  464.   Henwood  v.  Cheesetnan,  3  Do.  500. 

A  bill  ofexcepiions  mnj  be  tendered  to  the  opinion  of  the  Court,  at  any  stage  of 
the  case,  before  the  jury  have  delivered  thi-ir  verdict,  but  not  to  a  point  of  evidence.  \ 
*  Jones  V   Ins.   Co.  JV.  America,  4  Doll.  Rep.  246.    S.  C.  1  Binn.  Rep.  38.  Sikes 
V.  Ransom,  6  Johns.  Rep.  279 

Irrcularilies  in  the  conduct  of  the  jury  in  the  Couit  below,  are  not  examinable 
in  the  Court  of  Error,    f  .  States  v.  Gillies,  1  Peters,'  Rep.  159. 

It  lies  to  the  opinion  of  the  Court  ot  Common  Pleas,  on  the  trial  of  a  feigned  issue 
from  the  Register's  Court.    VansuTit  v.  Boileau,  1  Binn.  Rep.  444. 

But  not  for  rejecting  testimony  on  a  summary  motion  for  relief.  Sliortz  v.  Quigley, 

1  Binn.  Rep   222. 

It  will  to  the  opinion  of  the  Judge  in  his  charge  to  the  jury.    Church  v.  Hubbart, 

2  Crunch's  Rep.  239.    Smith  v.  Ca^Tington,  4  Do.  63. 

But  it  will  not,  for  rejecting  as  inadmissible,  a  witness,  intended  to  prove  a  fact,  not 
pertiiif^m  to  the  issue.  Turner  v.  Fendall,  1  Cranch's  Rep.  132.  Et  vide  Phoenix 
Ins.  Co.v.  Pratt,  2  Binn.  Rep.  308. 

On  a  writ  ot  error,  the  bill  of  exceptions  is  conclusive  on  the  parties,  and  the 
Court  will  not  presume  any  material  part  of  the  evidence  omitted.  Bingham  v. 
Cabbot,  3  Dull.  Rep.  38.  Et  vide  Hvntington  v    Champlin,  Kirb  Rep.  168. 

After  a  tri;il  on  the  general  issue,  a  bill  of  exceptions  bringing  into  question  the 
■whol"  coiitroversv ,  is  not  admissible.  M' Donald  v.  Fisher,  Kirb.  Rep.  339. 
Wadsworthy.  Sanford,ibid.A5(i.  Et  vide  Jaji  Gordon  v.  Jachson,  5  Johns.  Rep. 
467.   Frier  et  al.  v.  Jackson  ex.  d.  Van  Jlllen  etal.  8  Do.  387. 

A  bill  of  exceptions  ought  to  be  presented  at  the  trial,  and  the  Court  are  not 
bound  to  seal  it  at  a  subsequent  term.    Sikes  v.  Ransom,  6  Johns.  Rep.  279. 

On  a  bill  of  exceptions  the  whole  record  is  before  the  Court,  and  if  any  error  ap- 
pear, they  will  reverse  the  judgment,  though  they  think  the  Court  below  decided 
correctly  on  thf  point  on  which  the  bill  is  founded.  Murdock  v.  Herndon's  exrs. 
i  H.&  Mnnf.  Rep.  200.  St- «1  vide  Phcenix  Ins.  Co.  v.  Pratt,  2  Binn.  Rep.  308. 

If  an  iiistiument  of  writing  be  stated  in  a  bill  of  exceptions  to  have  been  offered 
in  evidence  at  the  trial,  and  no  objection  appears  to  have  been  made  to  the  proof  of 
its  execution,  it  is  to  be  presumed  to  have  been  duly  proved  or  admitted.  JVevilin 
V.  Aew/n,  i  Serg.  &  R.  Rep   275. 

The  Court  will  not  travel  out  of  the  record  to  find  matter  to  support  the  bill  of 
exceptions.  Clarke  r.  Russell,  3  DaU.  Rep.  422.  n.  Baring  v.  Shippen,  2  Binn. 
Rep.  168. 


OF  EVIDRNCE. 


out  of  which  the  record  issues,  without  leaving  it  to  the  j ur j.(c)       ci».  I. 
When  a  party  demurs  to  evidence,  he  ought  to  admit  the  whole  Introductory 
effect  of  the  evidence,  and  not  merely  the  facts  which  compose  ^'^^^''^'^^'o"*- 
it,  so  that  if  it  be  only  presumptive,  he  must  distinctly  admit       ^ 


Nor  wliere  the  record  stated  the  nature  of  the  evidence,  and  that  no  other  was 
admitted,  will  the  Court  inijuire  if  proper  evidence  was  rej.!cttd.  Smith  v.  Walker, 
1  CaWs  Rep.  28.   Vide  Wroe  v.  Washington,  1   Wash   Rep.  5G'2. 

If  the  transcript  of  a  record  not  nlevant  to  the  issue  is  read  without  opposition,  it 
is  not  error  that  the  jury  were  permitted  to  judge  of  its  correctness.    Coe  v.  Hitttoii, 

1  Serg.  &  R.  Rep.  398. 

But  a  judgment  will  he  reversed,  because  the  facts  were  imperfectly  stated  in  the 
bill  of  exceptions.    Barret  v.  Tazexvell,  1  Call's  Eep.  215.  Beatiiev.  Tabb's  adms. 

2  Munf.  Rep.  254. 

It  is  not  error  for  the  Court  to  refuse  to  instruct  the  jury,  after  being  sworn,  and 
before  evidence  introduced,  to  render  a  special  verdict.  Woodward  v.  WoodsorCs 
heirs,  6  Munf.  Rep.  227. 

A  writ  of  error  coram  nobis  for  error  in  fact,  lies  in  Pennsylvania  in  the  Common 
Pleas.   Day  v.  Hamburg,  1  Broivne's  Rep.  75. 

In  a  criminal  case,  it  is  ex  gratia,  and  will  not  lie  until  final  judgment  rendered. 
j\Iiles  V.  Rempublicam,  4  Yeates'  Rep.  319.  So  there  must  be  a  special  allocatur. 
Shaffer  v.  Same,  3  Do.  39.  In  J\^eiv  York,  it  seems  no  bill  of  exceptions  will  lie  in 
a  criminal  case.    The  People  v.  Holbrook,  13  Johns.  Rep.  90. 

Ajudgment  may  be  affirmed  in  part,  and  reversed  in  part,  as  where  it  is  good  fot 
the  debt,  but  bad  for  the  costs.  Siuearingen  v.  Pendleton^\  Serg.  &  R.  Rep.  396, 
JVelson  V.  J}ndrews,2  Jiluss.  Rep.  164.  Glover  v.  Heath,  3  Do. -252.  Waitew 
Garland,?  Do.  i53.  Whiting  \.  Cochra7i,  9  Do.  532.  Cwnmingsei aL  wPruden, 
11  Do.  206.  Et  vide  in  JVew  York,  Smith  v.  Jansen,  8  Johns.  Rep.  86.  S.  P 
Bradshaio  v.  Callaghan,  ibid.  435. 

In  a  criminal  case,  ajudgment  cannot  be  affirmed  in  part,  and  reversed  in  part. 
Jackson  v.  Commonwealth,  2  Binn.  Rep.  79.  Sed  vide  Duncan  v.  Commomvealth, 
i  Serg.  iJ  R.  Rep.  i5l. 

A  writ  of  error  will  lie  in  a  case  where  judgment  has  been  arrested.  Skinner  v. 
Robeson,  4  Yeates''  Rep.  375.  Benjamin  v.  Armstrong,  2  Serg.  &  R.  Rep.  392. 
Sed  contra  in  JVetw  York,  Fish -v.  TVeatheriuax,  2  Johns.  Cas.  215.  But  where 
judgment  has  been  givenfor  the  plaintiff,  and  isarrested,  he  may  move  for  judgment 
against  himself,  in  order  to  bring  a  writ  of  error,   ibid. 

As  to  the  form  of  a  bill  of  exceptions,  vide  Clarke  v.  Rnssell,  3  Dall.  Rep.  4l9.  n . 
Gordon  v.  Browne,  3  Hen.  &  Munf.  Rep.  219. 

In  Virginia  it  must  be  signed  by  a  majority  of  the  Justices  present,   ibid.  224. 

No  writ  of  error  lies  under  the  Judiciary  Act  of  1789,  c.  20.  s.  22,to  th  '  Supreme 
Court  of  the  U-  States,  for  any  error  of  fact.  Penhallow  v.  Doane,  3  Dall.  Rep.5\. 

Where  a  judgment,  though  informal  and  defective,  is  such  a  one  on  Avhich  an 
execution  could  issue,  the  party  injured  is  entitled  to  his  writ  of  error.  Wilson  v. 
Daniel,  ibid.  401 . 

Under  the  above  mentioned  Act  of  Congress,  a  writ  of  error  lies  only  from  the 
^7ja^ judgment  of  the  Circuit  Court.  Rutherford  v.  Fisher,  4  Dall.  Rep.  22. — 
Am.  Ed. 

(c)  In  Pennsylvania,  whether  the  evidence  be  written  or  parol,  a  demurrer  may 
be  offered,  and  if  to  a  deed,  it  must  be  set  out  in  hcec  verba.  Hurst  v.  Dippo, 
I  Dall.  Rep.  20. 

If  the  Judge  who  tries  the  cause,  errs  in  directing  a  joinder  in  demurrer,  it  is 
good  cause  for  the  Court  in  Bank  to  order  a  venire  de  novo.  Duerhagan  v.  U  S. 
Ins.  Co.  3  Serg.  ^  R.  Rep.  185. 


Hunter,  2  II. 
Black.  IS7. 


6  GENERAL  RULES 

Cii.  I.       every  conclusion  which  the  jury  might  have  drawn  from  it.     It 

oSSoi's  ^^  ^^^^  "*^^  ^°  *'"'^'  ^'^^  ^^^^^'  P^^^y  ^®  ^^^  obliged  to  join  in  de- 

^  murrer  ;  and  if  he  does  so  join,  a  venire  de  novo  must  be  awarded, 

for  the  Court  cannot  draw  the  the  conclusion  (c?)  The  want 
of  attention  to  this  distinction  between  evidence  and  facts,  is 
often  productive  of  much  inconvenience  in  the  course  of  legal 
proceedings.  The  finding  of  facts  is  the  peculiar  province  of  a 
jury,  and  if  not  stated  on  the  record  where  any  matter  is  sub- 
mitted to  the  Court  for  their  opinion  in  point  of  law,  however 
strong  the  evidence  of  those  facts  may  appear,  the  Court  cannot 

In  Virginia,  unless  the  Court  think  the  case  clear  against  the  party  offering  the 
demurrer,  it  will  be  allowed  at  any  time  before  tlie  jury  retire,  although  the  party 
offering  it,  may  have  examineil  witnesses,  and  the  whole  evidence  on  both  sides  be 
stated.    Hoyle  v.  Yoimg,  1  Wash.  Rep.  151. 

But  if  the  evidence  be  decisive  against  the  party  offering  to  demur,  the  Court  may 
refuse  to  compel  the  other  p:irty  to  join  in  it.  T/iweatt  et  al.  v.  Finch,  1  Wash. 
Rep.  217.  Wroe  v.  Washington  et  al.  ibid.  357,  Harrison  v.  Brock,  1  Munf. 
Rep.  22. 

Where  the  plaintiff's  evidence  is  not  doubtful  and  uncertain,  but  defective  only, 
the  defendnnt  may  demur.  Knox  v.  Garland,  2  Call's  Rep.  241.  Vide  Cunning- 
ham V.  Ilerndon,  ibid.  530. 

But  where  the  parol  evidence  is  vague,  a  party  will  not  be  compelled  to  join  in 
it,  unless  the  party  offering  it,  will  admit  every  fact  and  conclusion  which  such  evi- 
dence may  prove.     Hyers  v.  Wood,  2  CaWs  Rep.  588. 

If  it  appears  on  a  demurrer  to  evidence,  that  the  plaintiff  ought  not  to  recover, 
the  Court  c:mnot  set  it  aside,  and  grant  a  new  trial,  but  must  enter  judgment  for  the 
defendant.     Knox  v.  Garland,  2  CaWs  Rep.  24-1. 

In  a  demurrer  to  evidence,  the  evidence  on  both  sides  ought  to  beiaserted.  Uyers 
V.  Green,  ibid.  555.     Satne  v.  Wood,  ibid.  57i. 

In  a  writ  of  right,  if  the  demandant  demur,  he  must  shew  title  in  himself,  ibid. 

In  Connecticut,  if  the  parties  please,  they  may  demur  to  parol  evidence  ;  but  nei- 
ther party  can  be  compelled  to  join  in  it.   Town  of  Hampton  v.  To~am  of  Windham, 

0  Roofs  Rep.  199.     Foivlerx.  Macomb,  ibid.  308.      Et  vide,  Bromster  v.  Dana, 

1  Root's  Rep.  2f)G. 

A  similar  decision  was  made  in  the  case  of  Young  y.  Black,  7  CrancJi's  Rep. 
5G5.     Et  vide,  Walker  v.  Kendall,  Hard.  Rep.  408. 

In  Young  V.  Black,?  Vranch's  Rep  565,  it  was  held  to  be  a  matter  of  discre- 
tion with  the  Court,  whether  it  will  compel  a  party  to  join  in  demurrer  toevidence. 
—Am.  Ed. 

[d)  On  a  demurrer  to  evidence,  the  Court  will  infer  such  facts  as  the  jury  would 
l;ave  done,  had  the  cause  been  left  totheirdecision.  Patrick  v.  Hallet  et  al.  1  Johns. 
Rep.  241.  Biggers  v.  Mderson,  1  H.  &  Munf.  Rep.  60.  Pawling  v.  U.  States, 
4  Cranch's  Rep.  219.   Stephens  v.  WIdte,  2  Wash.  Rep   203. 

Every  thing  is  to  be  considered  as  admitted  on  a  demurrer  to  evidence,  which  a 
jury  might  reasonably  infer  from  it.  Lewis  v.  Few,  5  Johns.  Rep.  29.  Steinback 
V.  The  Colitmh.  Ins.  Co.  Col  &  Caines'  Cas.  374.  S.  C  2  Caines^  Rep.  134. 
Smith  v.  Steinback,  2  Caines'  Cas.  Er.  158.  Snowdenv.  Phcenix  Ins.  Co.  3  Binn. 
Rep.isT.  Town  of  Hampton  V.  Town  of  Windham, '2.  Root's  Rep.  \^^.  Patrick 
T,  Ludlow,  3  Johns.  Cas.  10.    Forbes  v.  Church,  ibid.  159.— Am.  Ed. 


OF  EVIDENCE. 


supply  this  defective  finding.(e)     The  conclusion  resulting  from      ch.  i. 
the  whole  should  be  found  and  stated  by  the  jury.  Introfinctory 

Observations. 

The  only  use  of  evidence  being  to  ascertain  the  truth  of  dis-  " 

puted  facts,  it  follows,  that  none  is  required  in  support  of  those  ^^"^^'g^'^^J^^ 
allegations  which  are  not  denied  ;  and  the  admission  of  any  fact 
on  the  record,  or  by  any  other  formal  act  in  the  course  of  a  cause, 
not  only  prevents  the  necessity  of  proof,  but  precludes  the 
party  making  such  admission  from  offering  any  evidence  to  the 
contrary.(/)     But  when  either  party  has  made  an  affirmative 

(e)On  a  special  verdict,  the  Court  can  intend  nothing  which  is  not  found.  Jenks 
\.Hallet,\  Caines'' Rep.  60.  Et  vide  Tunnell  et  iix.v.  TFatson  et  iix.  2  Jiliinf. 
Hep.  283. 

The  fact  of  fraud  not  being  found  by  a  jury  in  a  special  verdict,  cannot  be  pre- 
sumed.    Bvuguet  V.  RIdnelander,  1  Caines'  Cas.  in  Er.  xxvii. 

In  a  special  verdict  the  facts  themselves  should  be  explicitly  found.  Henderson 
V.  .mens,  1  H.  &  Mitnf.  Rep.  235. 

It  is  not  necessary  that  fraud  be  expressly  found,  eo  nomine,  if  facts  amounting  to 
it  in  legal  construction  be  found.     Robertson  v.  Eivell,  3  JMiinf.  Rep.  1. 

A  case  concludes  the  parties  making  it,  but  is  not  conclusive  as  to  third  persons. 
Milson  V.  Columb.  Ins.  Co.  1  Johns.  Rep.   301. — Am.  Ed. 

(/)  Where  the  parties  agreed  that  any  matter  might  be  given  in  evidence  before 
(he  Sheriff,  which  could  not  be  given  on  a  trial,  or  could  have  been  pleaded,  an  in- 
quisition will  not  be  set  aside,  because  the  Sheriff  admitted  improper,  or  rejected 
proper  evidence.  Sharp  v.  Diisenbury,9,  Johns.  Cas.  117,  .S".  C.  Coleman's  Cas. 
134. 

An  admission  in  a  case  concludes  the  party  making  it.  Vandervoort  et  al.  v. 
Smith,  9.  Cai7ies''  Rep.  155. 

If  A.  aihuits  that  B.  signed  the  note  jointly  with  him,  but  says  that  B.  signed  it  as 
security  only,  the  whole  admission  must  be  taken  together.  Hopkins  v.  Smith,  11 
Johns.  Rep.  161. 

No  rt-gard  will  be  paid  by  the  Court  to  any  agreement  not  reduced  to  writing. 
Shippe7i's  lessee  v.  Hush,  1  J)(dl.  Rep.  251. 

An  agreement  of  a  paity,  when  not  nllached  to  the  record,  must  be  considered  as 
a  concession  for  that  trial  only.     Pearly.. Men,  I  Tyl.  Rep.i. 

An  agreement  of  attorneys  in  the  Court  below,  to  abide  by  the  opinion  of  a  pro- 
fessional gentleman,  whether  restituiion  of  the  premises  shouM  be  made  to  the 
plaintiff  in  error,  fi-om  whom  they  had  been  taken  by  a  habere  facias,  was  enforced 
by  the  Supreme  Court.     Cahillv.  Beim  et  al.  G  Bi7in.  Rep.99. 

An  agreement  was  entered  into,  to  argue  a  case  before  the  Judg-es  ot  the  Circuit 
Court,  and  their  opinion  to  be  conclusive  ;  the  case  was  argued  before  one  Judge, 
on  the  change  of  the  judiciary  system.  /yeW,  ihat  the  parlies  were  bound  by  the 
agreement,  and  that  no  appeal  would  lie  from  his  Judgment.  Galbruith  et  al.  v. 
Coll,  4  Yeales'  Rep.  55 1. 

The  right  of  appeal  from  an  award  of  arbitrators  when  given  by  an  Act  of  Assem- 
bly, cannot  be  taken  away,  except  by  an  agreement  in  writing,  made  part  nfthe  pro- 
ceedings in  Court,  or  before  a  justice,  when  the  suit  is  before  him.  Da.vson  v. 
Condij,  7  Serg.  &  R   Rep.  366. 

A  party  is  not  bound  by  an  admission  of  his,  in  an  offer  tending  to  a  compromise 
which  is  not  accepted.     Williams  v.  Price,  5  Jfuvf.  Rep.  507.     Et  vide  Hcrr  v. 


S  GENERAL  RULES 

Cli.i.       allegation  which  is  denied  by  his  adversary,  either  by  a  traverse 
On  wiinm  the  of  that  particular  fact,  or  by  a  general  denial  of  the  whole  case 
where  that  mode  of  pleading  is  permitted,  the  party  whose  al- 
_     „  legation  is  so  denied  is  in  general  required  to  prove  it ;  for  the 

298.  negative  not  admitting  in  its  nature  of  direct  proof,  he  who  de- 

nies a  fact  is  not  called  upon  to  give  that  evidence  which  can 
only  be  circumstantial,  till  some  evidence  has  been  given  to  prove 
the  fact  alleged.*  This  general  rule,  however,  is  liable  to  ex- 
ception in  cases  where  a  man  is  charged  with  not  doing  an  act 
which  by  the  law  he  is  liable  to  do  ;  for  the  law  presumes  that 

Slough, 'Z  Broione^s  Hep.  112,  n.  Slocum\.  Perkins,  3  Serg.  U  R.  Hep.  '295. 
JBaird  V.  mce,  1  Call's  Hep.  26. 

Where  the  parties  to  a  suit  consented  to  give  in  evidence,  under  the  general  issue, 
special  matter  not  allowed  by  the  rules  of  pleading,  the  Court  r^  fused  to  permit 
such  a  course,  and  ordered  the  pleadings  to  be  set  aside.  Kellogg  v.  IngersoU, 
1  Mass.  Rep.  5. 

In  a  criminal  case  the  waiver  of  any  right,  ought  to  be  made  of  record  to  bind  the 
defendant.    Commo7iiveaUh  v.  Andrews,  3  JMass.  Rep.  130. 

Consent  by  the  parties  that  the  suit  shall  not  abate  by  the  death  of  either  of  theno, 
is  obligatory,  and  will  operate  like  a  release  of  errors.  Darlington  y.  Cheltmt, 
1  Call's  Rep.  520. 

Where  the  Court  never  had  jurisdiction,  it  cannot  be  given  by  the  consent  of  the 
parties,  but  where  they  once  had,  although  the  power  may  have  been  executed, 
jurisdiction  may  be  restored  by  consent.  Brown  v.  Crow,  Bard,  Rep.  448.  Bogle 
-v.Fitzhugh,'!  Wash.  Rep.  213.— Am. Ed. 

•  Though  not  strictly  within  the  province  of  a  treatise  upon  evidence  to  note  the 
course  of  proceeding  to  be  adopted  by  counsel  on  the  trial  of  a  cause,  yet  it  may  be 
useful  in  practice  to  observe,  that  in  general,  the  plaintiff's  counsel  opens  his  case 
and  calls  his  witnesses,  and  the  defendant's  counsel  having  done  the  like  for  his 
client,  llie  plaintiff's  counsel  replies  and  makes  his  observations  on  the  whole  case. 
But  when  the  plaintiff's  counsel  thinks  it  necessary  to  call  witnesses  for  the  purpose 
of  conti'adicting  some  new  fact  proved  by  the  witnesses  for  thn  defendant,  the  defen- 
dant's counsel  makes  a  second  speech,  confining  his  observations  to  the  witnesses  so 
called  by  the  plaintiff,  and  the  plaintiff's  counsel  afterwanls  makes  a  general  reply. 
In  cases  where  the  defendant  calls  no  witnesses,  the  plaintiff's  counsel  has  no  reply, 
unless  in  the  case  of  the  Attorney-General,  or  other  counsel  representing  him,  wliea 
prosecuting  for  the  Crown.  This  is  the  general  course:  but  if  the  aflSrmative  be  oa 
the  defendant,  he  may  begin,  and  then  his  counsel  has  the  general  rt•|)l^  ,  as  in  the 
case  of  an  ejectment  by  an  heir  at  law,  where  the  defendant  admits  the  title  and  sets 
up  a  will,  which  the  plaintiff  attempts  to  impeach.  Goodlitle  dein.  Revettv.  Bra- 
hatn,  4  T.  Rep.  i-97.  So  where  a  landlord  having  obtained  a  verdict  in  ejectment, 
on  a  forfeiture  of  a  lease,  the  tenant  brought  a  cross  ejectment ;  the  defendant  ad- 
mitting the  lease,  began  by  proving  acts  of  forfeiture,  and  .Mr.  Justice  Lawrence 
held  his  counsel  to  be  entitled  to  the  general  reply.  Doe  'ii -m.  Cluimberlayne  v, 
Lloyd,  Heref.  Sum.  Ass.  181 1.  And  the  like  was  ruled  by  Mr.  /.  Le  Blanc  m  re- 
plevin, where  the  defendant  did  not  plead  the  general  issue,  bnt  took  the  affirmative 
,  on  hiroselt  by  pleading  liberum  tciiementum.     Bidfordw  Croke,  Oxford  Sum.  Ass. 

1811.  The  Court  of  Common  Pleas  has  laid  it  down  as  a  general  rule,  that  the  de- 
fendant by  putting  in  a  rule  for  payment  of  money  into  Court,  which  it  was  the  'luty 
of  the  plaintiff  to  admit,  shall  not  thereby  entitle  the  plaintiff  to  reply.  2  Taun^.  267. 


OP  EVIDENCE.  g 

every  man  does  his  duty  to  society,  until  the  contrary  is  proved;(g-)      ch.  i. 
and  therefore  in  an  information  against  hardHalifax,  for  refus- On  whom  the 
ing  to  deliver  up  the  Rolls  of  the  Auditor  of  the  Exchequer,  the    P*"""*^  "'^'- 
Court  required  the  prosecutor  to  prove  the  negative,  viz.  that  he  p.,,   > 
did  not  deliver  them  up.  And  in  a  late  case,(l)  where  an  action  t48. 
was  brought  against  the  East  India  Company  for   putting  onfjgg?^'^" 
board  the  plaintift''s  ship,  a  cask  containing  varnish  of  a  com- (i)  Williams 

V.  E^st   Ind. 

— — — —  Co.  3  East. 

192. 
{g)  Where  a  person  is  hound  to  do  a  certain  act,  the  omission  of  which  would  he  a 

culpable  neglect  of  <luty,  the  performance  of  it  will  be  presumed,  unless  the  con- 
trary is  proved.    Hatiuell  v.  Root,  19  Johns.  Rep.  345. 

When  the  law  presumes  the  affirmative,  the  proof  of  the  negative  is  thrown  on 
the  other  sidr.   V.  States  v.  Hayward,  2  Gallis.  Rep.  498. 

As  the  law  directs  the  Sheriff  to  give  notice  of  the  sale,  it  presumes  that  he  has 
performed  his  duly  ;  but  this  presumption  may  be  rebutted.  Topper  v.  Taylor  et  al. 
6  Serg.  &  R.  Rep.  174. 

Every  officer  acting  under  the  sanction  of  an  oath,  or  in  whom  the  government 
reposes  a  trust,  shall  be  presumed  to  have  done  his  duty,  until  the  contrary  be 
proved.  Hickman  v.  Boffman,  Hardin's  Rep.  ."iGS. 

An  officer  of  the  customs  duly  commissioned,  and  acting  in  the  duties  of  his  office, 
is  presumed  to  have  taken  the  regular  oaths.  U.  States  s .  Bachelder,  2  Gallis. 
Rep.\5. 

An  exemplification  of  proceedings  of  a  foreign  Court,  are  presumed  correct" 
Woodbridge  v.  Avsti^i,  2  Tyl.  Rep.  368. 

If  there  is  a  want  of  sea  worthiness  in  the  vessel  of  a  commion  carrier,  he  is  liable, 
although  the  loss  does  not  proceed  from  that  cause  ;  but  if  it  appears,  from  ihe  facts, 
that  the  loss  may  be  attributed  to  inevitable  accident,  the  onun  proband!  of  unsea- 
worthiness lies  on  the  owner  of  the  goods.   Rell  v.  Read,  4  Binn.  Rep.  127. 

In  an  action  on  a  covenant  of  warranty  on  lands,  the  burthen  of  the  proof  that 
plaintiff  yielded  to  a  title  paramount  to  that  of  the  warrantor,  lies  on  the  plaintiff. 
Hamiltonx.  Cutts,  4  jyiass.  Rep.  349. 

On  a  capture  and  libel  as  prize,  the  onus probandi  lies  on  the  captors.  JMiller  v. 
The  Resolution,  2  Ball.  Rep.  22. 

The  burlh<"n  of  proof  is  :ilways  on  those  who  take  tlie  affirmative  in  pleading. 
Phelps  et  al.  V.  Harttuell,  et  al.  I  Muss.  Rep.  71.  Bkiney  v.  Sargent,  ibid  335. 
Buckminster  et  al.  v.  Perry,  4  Do.  593.  Hubbard  v.  Hubbard  exr.  6  Do.  397. 

In  an  indictment  against  the  minister  ot  the  "  United  Baptist  Society,''  for  grant- 
ing false  certificates  of  membership,  they  will  be  presumed  to  be  true,  until  the  go» 
■vernment  proves  them  false.    Cominomvealth  v.  Stoiv,  1  JMass.  Rep.  54. 

Every  judgment  of  a  Court  is  presumed  to  be  fair,  until  the  contrary  appears  ; 
and  if  obtained  by  collusion,  the  person  alleging  it  ought  to  plead  and  prove  it.  Lee 
exr.  of  Daniel  V.  Cooks,  1  Wash.  Rep.  308. 

The  circumstance  that  a  writing,  'exhibited  for  probate  as  a  last  will,  was  written 
by  the  testator,  is  prima  facie  evidence  that  he  was  in  his  senses  and  able  to  make  a 
■ivill;  so  that  the  onus  probandi  to  repel  that  p'-esumption,  lies  on  those  who  wish  to 
impugn  it.    Temple  et  al  v.  Temple,  I  H.&  Munf.  476. 

Sanity  is  to  be  presumi;d,  and  the  onus  probandi  lies  on  the  party  denying  if. 
Jackson  ex.  d   Van  Dvsen  v.  Van  Dusen,  5  Johns.  Rep.  144. 

But  \vhf!i-e  derangement  has  been  shewn,  it  is  then  incumbent  on  the  other  side 
to  shew  that  the  party  who  did  the  act,  was  sane  at  the  very  time  it  was  performed . 
ibid.  Et  -vide  its,  of  Hodge  v.  Fiiher  et  al.  I  Peters'  Rep.  163.— Am.  Ed. 

c 


10 


GENERAL  JIULES 


Ch.  I.       bustible  nature,  without  giving  notice  of  its  contents,  whereby 
On  whom  the ^^p  ^ask  took  fire  and  destroyed  the  ship;  this  exception  to  the 

"        general  rule  was  fully  recognised,  and  the  Court  held  that  it  was 

incumbent  on  the  plaintiff  to  prove  that  the  defendants  did  not 

give  due  notice,  and  that  for  this  purpose  he  must  call  either  the 

person  who  delivered,  or  him  who  received,  the  cask  on  board 

the  ship,  to  prove  what  passed  at  the  time.     So  where   a  wife, 

twelve  months  after  her  husband  had  gone  abroad,  married  a 

second   husband,    and   had  children,  no   evidence   being  given 

that  the  husband  was  living  at  the  time  of  the  second  marriage, 

(i)llex'D.      ^i^g  children  were  held  to  be  legitimate,(l)  though,  according  to 

2B.S4Ai'.386.  the  general  rules  of  evidence,  the  presumption  would  be  that  the 

(2)  Vide  posi,  husband  was  then  living.(2) 

f^i^^''^  VI     „      Another  rule  is,  that  the  evidence  must  be  applied  to  the  parti- 

I  he  fvioence  _        '  _       rr  r 

must  be  con-   cular  fact  in  dispute  ;  and  therefore  no  evidence  not  relating  to 
issue.  °  '^     ^^^  issue,   or  in  some  manner  connected  with  it,  can  be  receiv- 
ed ;(h)  nor  can  the  character  of  either  party  to  a  civil  cause  be 

(A)  Neither  party  shall  give  evidence  of  any  matters  which  are  not  in  issue,  becanse 
the  other  party  will  have  no  opportunity  of  encountering  it  by  opposing  testimony. 
Laniard  v.  Bvffiiigton,  3  JMass.  Hep.  552,  et  vide  Langdon  et  al.  v.  Pott&',  11 
Muss.  Hep.  313. 

In  a  question  of  boundary,  depositions  taken  in  the  presence  of  both  parties, 
thou,£;h  befoie  any  cause  was  pending,  are  admissible.  Les.  of  Jilontgomery  v, 
Dickey,  2  Yeates'  Hep.  212. 

In  an  indictment  ^ot  forcible  entry,  it  was  resolved,  that  title  could  not  be  given 
in  evidence  by  the  defendant  to  prevent  restitution.  RespubUca  v.  Shryber  et  al, 
1  Dull.  Rep.  68. 

The  answer  of  one  co-defendant  in  Chancery,  is  evidence  neither  for  nor  against 
the  other.  Grant  v.  Jiissett,  1  Caiues'  Cas.  in  Er.  112.  Vide  Phoenix  v.  Day. 
5  Johns.  Rep.  412. 

A  case  made  between  the  assurers  and  the  assured  in  an  action  on  a  policy  of  in- 
surance, will  not  be  received  in  evidence  in  another  suit  in  which  the  parlies  are 
difterent,  though  it  relates  to  the  same  subject  on  policy.  Etting  et  al.  y.  Scoti  ct 
al.^  Johns.  Rep.  15". 

In  an  action  of  trespass  against  several  joint-defendants,  if  there  is  no  evidence 
against  some  of  them,  they  may  be  struck  off  the  record,  and  admitted  as  witnesses 
for  their  co-defendants.  Brown  et  al.  v.  Ho-.vard,  14  Johns.  Rep.  119.  Et  vide, 
Van  Jjeusen  et  al.  v.  Va?i  Slyck  et  iix.  15  Do.  223. 

So  in  trespass  quare  clausumfregit  agHinsl  three  joint  trespassers,  two  were  taken 
and  the  liurd  relui'ned  not  found  ;  it  was  held,  that  (he  one  who  had  not  been  ar-i 
rested,  was  a  competent  witness  for  the  other  two  defendants.  Stockhom  v.  Jones, 
10  Johns.  Rep.  21. 

A  parly  i;i  the  same  suit  or  indictment  cannot  be  a  witness  for  his  co-defendant, 
until  he  has  been  acquitted  or  convicted  ;  and  whether  the  defendants  plead  jointly 
or  separately  makes  no  difterence.     People  v.  .Bill,  ibid,  95. 

If  the  plaintiff  in  m.  action  on  a  policy  of  insurance,  deliver  to  a  broker  a  paper  to 
enable  him  to  adjust  a  loss,  this  paper  will  not  be  evidence  in  a  suit  brought  by  one 
of  ihi  parlies  against  the  master  of  the  vessel  insured.  Delafehlv,  Ha7id,  S  Johns. 
Rep.  310. 


OF  EVIDENCE. 


11 


called  in  question,  unless  put  in  issue  by  the  very  proceeding       cii.  I. 
itself,  for  every  cause  is  to  be  decided  on  its  own  circumstances, The  evidence 

ni'ist  be  con- 

■ — — — ■ Biiei!  t(»  the 

issue. 


Where  a  privity  is  shewn  bf^tw  -en  several  defendants,  the  words  or  acts  of  mhv 
one  of  them,  may  be  exhibited  as  proofs  of  the  trespass.  Broug-hton  v.  Ward,  1 
Tyl.  Rep.  137".     El  vide  Commonwealth  v.  Eberle  et  al.  3  Serg^.  &  R.  Rep.  9. 

In  an  action  for  false  representations  of  a  merchant's  ci-edit  ami  charaolcr,  similar 
representations  to  othei'  people  by  the  defendant  are  evidence.  Rumsey  v.  Lovell, 
1  Jlnth.  M.  P.  Cas.  11.    Et  vidi-  AUinon  v.  Maithieu,  3  Johns.  Rep.  235. 

Testimony  arising  after  the  commencement  of  the  action,  is  admissible  to  explain 
facts  occurring  before  its  commencement.     jyf'I^od  v.  Johnson,  1  Jinth.  J\*.  P  16. 

In  an  action  brought  against  a  surviving  partner,  upon  a  promissory  note  alleged 
tohave  been  signed  by  the  deceased  partner  in  his  life  time,  in  the  name  of  the 
firm,  proof  of  his  confessions  of  having  signed  it,  are  admissible.  .Adams  v.  Broxon- 
son,  1    Tyl.  Rep.  452. 

In  an  action  of  deceit,  in  a  nature  of  a  conspiracy,  the  acts  or  declaration  of  an  al- 
leged particeps  in  the  fraud  cannot  be  admitted  in  evidence  to  the  jury,  uiitil  a  pri- 
vity between  him  and  the  defendant  is  shewn  to  the  Court.  But  when  proved,  the 
most  liberal  latitude  will  be  allowed  in  shewing  the  conduct  and  confessions  of  the 
particeps.     Windover  et  al.  v.  Bobbins,  2  Tyl.  Rep.  1 . 

Seisin  of  the  land,  or  a  mere  naked  claim  to  the  crops  standing  on  the  terra  in 
qua,  the  assault  was  committed,  cannot  be  given  in  evidence  under  the  general  is- 
sue in  mitigation  of  damages,  in  an  action  of  assault  anil  battery.  Wright  v.  Ste- 
phanus  et  al.     2  Do.  80. 

\n  &n  AK.i\on  oi  trespass  quarc  clausum  fregit  a^s.m'iHwQ,  the  levy  of  an  execu- 
tion upon  a  jmlgment  rendered  against  one  of  the  defendants  who  had  quitted  pos- 
session before,  and  never  intermeddled  with  it  since  the  levy,  cannot  be  given  in 
evidence  against  the  other,  who  was  in  adverse  possession  at  the  date  of  ihe  levy, 
and  has  not  surrendered  his  possession  since.  Bovine  et  al.  v.  Graham  et  al.  ibid. 
411. 

In  an  action  of  debt  on  bond,  the  defendant  cannot  give  in  evidence  any  thing 
which  would  be  the  ground  of  a  different  cause  of  action.  Williams  v.  Hcdsey,  1 
Roofs  Rep.  418. 

Where  there  are  strong  circumstances  to  suspect  a  note  has  been  fraudulently  al- 
tered, general  corroborating  circumstances  may  be  admitted  in  evidence  to  strengthen 
such  suspicion ;  as  that  other  notes  drawn  and  endorsed  by  the  same  parties, 
(to  take  up  one  of  which  the  note  in  question  was  given,)  had  been  altered.  Rankin 
T.  Blachwell,  2  Johns.  Cas.  198. 

A  deed  is  not  evidence,  unless  it  is  first  shewn  that  the  grantor  possesses  some  in- 
terest, either  in  law  or  equity,  in  the  matter  in  controversy.  Faitlkner  v.  Eddy, 
\  Bin.  Rep.  m.  Les.  of  Peters  et  al.\.  Condron,  2  Serg.  &  R.  Rep.M.  Con- 
tra, I^s.  of  Bioren  v.  Keep,  1  Feates'  Rep.  440. 

A  deed  proved  to  be  executed  by  several  of  the  grantors,  though  not  by  all  of  them, 
and  not  recorded,  was  nded  to  be  admissible  in  evidence.  Les.  of  Brown  v.  Long, 
1  Yeates'  Rep.  1 62. 

In  an  action  against  a  common  carrier  by  water,  to  recover  damages  for  the 
loss  of  the  plaintiff's  goods,  where  the  defence  is,  that  carriers  by  water  are,  by 
the  custom  of  the  country  answerable  for  such  losses  only  as  are  occasioned  by 
their  own  negligence,  the  defendant  cannot  give  in  evidence,  that  in  a  case  in  which 
the  plaintiH'had  carried  the  property  of  others,  he  had  refused  no  make  compensa- 
tion for  a  loss.     Dean  v.  Swoop,  2  Binn.  Rep.  72. 

Declarations  of  a  parly  are  evidence  against  him,  though  made  after  the  com- 
mencement of  the  suit.    Morrises  Les.  v.  Vanderen,  1  Dall.  Rep.  65. 

So  the  declarations  of  a  person  under  whom  a  party  to  a  suit  claims,  are  evidence 
against  him.    Bassler  v,  J\lesly,  2  Serg.  &  R.  Rep,  354. 


£g  GENERAL  RULES 

Cli.  L  and  not  to  be  prejudiced  by  any  matter  foreign  to  it.(l)  (i) 
The  evidence  Therefore,  in  an  ejectment  by  the  heir  at  law,  to  set  aside  a  will 
fined  to  the"  f^r  fraud  and  imposition  committed  by  the  defendant,  he  shall 
issue.  hqi  jje  permitted  to  call  evidence  to  prove  his  general  good  cha- 

rafter  :(2)  but  in  a  similar  case  before  Lord  Kenyon  at  (iuild- 

WlYf..  ^^"^^  hall,(5)  where  the  surviving  subscribina:   witness  was  called  to 

[195,]  et  seq.  '^    '  so 

(2)  Goo.iiight  ...  PL.  .       .  ^        ■    . 
den>    F- rfi  7)        1"  covenant  on  a  lease,  the  (leciHi'ations  oi  the  lessor,  in  whose  name   th':'  suit  is 

HiiV.-.Wiriion  brought,  i"V  th"  use  of  another,  may  be  given  in  evidence  by  the  lessee.  Johnson  v. 

SiiiTi    \ssis.      £;en\  I  .i>r§-.  &  R.  Rfp.  25. 

t>  ^"'-  declai  aiions  by  one  otseveial  devisees  in  a  vill,  are  not  evidence  to  invali- 

J   B   N    P       (\^\.<ih,ox^  \h^- \%%ns  n't  (levisavitvclnon.  Miller  et  al.y.  Miller, 2)  Serg.  SJ  R.  Rep. 

296,'      '      '     267.     JBo.cadv.Wi!llace,iI)o.iQ9. 

In  an  action  on  a  h.<nd  agains;  in-incipal  and  surely,  the  confession  of  the  principal 

(3)  riw.  dem.  ,-,iay  he  given  in  evidence.     Simontony.  Boncfuv,  C   C  Jan.  1811,  M.  S.  Rep. 
Steplienson  v.      rp^^  .  aek„ovvleili;nient  bv  a  known  partner  of  ihe  existence  of  a  partnership,  can- 
vV  "^ !  K  e  "  4  ' 

Fsn   Ca's    SO    ""^^  ^^  given  in  evidence  against  awother  charged  as  a  dormant  partner.      Corp  v. 

■  Robinson,  C.  C.  Oct.  1809,  ^li  ,S'.  Rep. 

Deciaratinns  by  r.ieinbers  of  \vh;.t  passed  at  a  meeting  of  a  corporation  are  not 
evidence  against  it.     Magill  v.  Kaitffmun,  4  Serg.SJ  R.  Rep.  321. 

Where  one  guarantees  the  performance  of  a  contract  lobe  made  by  another,  the 
declarations  nf  tin  latl'  r.  as  to  acts  done  within  the  scope  of  his  authority,  are  evi- 
dence, though  not  conclusive,  to  charge  the  former.  Meade y.MDowell,  5  Binn. 
Rep.  195 Am   Ed. 

[i)  In  trespass  for  killing  a  dog,  the  plaintiff,  to  increase  damages,  gave  evidence  of 
the  qualities  and  value  of  tht-  dog  ;  and  it  was  held,  that  the  defendant  in  mitigation  ot 
them,  under  the  general  issue,  might  do  the  same.  Leniz  v.  Stroh,  6  Serg.  &  R. 
Rep.  .34. 

If  the  character  of  plaintiff  or  defendant  is  not  impeached,  evidence  in  favour  of 
character  is  not  admissible.  Ketkmdw  Bisset,  C.  C.ofPenn.  OcM 804,  JJi.  5, 
R(f. 

In  an  action  for  a  libel,  with  a  plea  oi  justif  cation,  the  plaintiff  may  give  evidence 
of  1ms  cbaiactcr  before  it  is  attacked  by  defendant.  Romayne  v.  Duane,  C.  C.  of 
Penn.  Jpril,  1814,  .If.  ,S'.  Rep. 

In  assumpsit  for  money  had  and  received,  the  defendant  cannot  giTe  evidence  of 
his  gent  ral  character,  though  he  is  incid-ntallj  charged  by  the  evidence  with  com- 
miliing  a  particular  fraud.   JK'ash  v.  Gilkeson,  5  Serg.  £if  R.  Rep.  352. 

And  if  such  rvidence  is  admitted,  the  error  is  not  cured  by  the  Court  telling  the 
jury,  before  the  bill  of  exceptions  is  actually  signed,  that  they  ought  to  pa>  no  re- 
gard to  it.   ibid. 

In  actions  for  tort,  and  particularly  such  as  charge  defendant  with  gross  depravity, 
upon  circumstances  merely,  evidence  of  good  character  and  integrity,  is  admissible 
to  repel  the  charge.    Rua7i  y .  Perry ,  5   Caiiies'' Rep.  120. 

In  an  action  for  maliciously  procuring  the  plaintiff  to  be  arrested  on  a  charge  of 
larceny,  the  defendant  cannot  give  evidence  to  shew  that  the  plaintiff's  character  was 
suspicions,  and  that  his  house  had  been  searched  on  former  occasions.  JVewsan  v. 
Carr,  2  Starkie's  Rep.  69. 

In  an  action  charging  the  plaintiff  with  perjury,  it  is  not  competent  for  the  defend- 
ant to  give  evidence  that  the  plaintiff  had  constantly  advanced  atheistical  opinions  as 
the  principles  of  his  belief,  in  mitigation  of  damages.  Ross  \.  Lapham,  li  Mass. 
Rep.  275. 

In  a  civil  case,  the  plaintiff  will  not  be  permitted  to  shew  any  illegality  in  his  own 
conduct,  to  maintain  his  action,  sior  shall  the  defendant  in  his  defence  allege  his  own 
wrong.    ChurchiU  v.  Suter,  4  Do.  161. 


OF  EVIDENCE.  ^3 

impeach  the  will,  on  account  of  fraud  in  obtaining  it,  his  Lord-       Ch.  I. 

shin  nermitted  the  devisee  to  call  persons  to  the  general  good  The  evidence 
I   r  ,       M  •  -i  I  j\    1  must  be  con- 

character  ot  the  two  other  subscribing  witnesses  who  were  d^ad.  fined  to  the 

In  an  action  for  criminal  conversation,(l)  the  defendant  may '^'^"^• 

o-ive  in   evidence  particular  facts  of  the  wife's   adultery  wkh  " 

others,  or  her  having  had  a  bastard  before  marriage  ;  because  by  ^j^.igion^'j!".' 

brinffina:  the  action,  her  husband  puts  her  general  behaviour  ia  WiiiesC.  .1. 

00  '  "^  _  Hf  re  ford 

issue,  but  he  cannot  prove  any  instance  of  her  misconduct,  sub- 1745^  b,ji'. 
sequent  to  the  act  of  adultery .(2)  (k)  '^-  P-  296- 

So  in  criminal  cases  where  the  defendant's  character  is  put  ifl  (?) '^'f'*?  *• 

*  ,    raiicc',  I 

issue  by  the  prosecution,  the  prosecutor  may  examine  to  parti- Esp.  Cas. 
cular  facts,  for  it  is  impossible  without  it  to  prove  the  charge.  ' 

Yet  there  is  one  case  of  that  sort  in  which  the  prosecutor  is  not 
allowed  to  examine  to  any  particular  fact  without  giving  pre- 
vious notice  of  it  to  the  defendant,  and  that  is  where  a  man  is 
indicted  for  being  a  common  barrator :  and  the  reason  is,  be- 
cause such  indictments  are  commonly  against  attornies,  whose 


In  an  action  fov  a  false  repi-esentation  of  character,  the  defendant  may  give  his  own 
character  in  evidence.   Riimsey  et  al.  v.  Lovell,  Anth.  JV.  P.  Cas.  '21.  n.  a. 

In  an  action  of  defamation,  'lie  defendant  cannot  shew  thi^  plaintiff's  general  cha- 
racter in  evidence  in  mitigation   of  damagts.    Smith  v.  Shiunivay,  2  Tyl.  Rep.  74. 

So  where  the  plaintiff  claimed  a  chattel  under  a  conveyance  alleged  to  be  fraudu- 
lent, evidence  of  the  character  of  the  parties  thereto  was  refused.  PVoodruffx. 
Whittlesey,  Kirb.  Rep.  60. 

So  in  a  qui  tarn  action  for  an  assault,  evidence  of  defendant's  character  refused. 
Thompson  v.  Church,  1  Root's  Rep.  312. 

In  an  action  for  a  breach  nf  pi-omise  of  marriage,  the  defendant  m:iy  shew  in  miti- 
gation of  damages,  the  licentious  conduct  of  the  plaintiff,  and  her  general  char:»cter 
as  to  sobriety  and  virtue,  without  any  limitation  as  to  time.  Johnston  v.  CLndhins, 
1  Johns.  Cas.  116. 

Quere,  In  an  action  for  a  libel,  can  the  defendant  give  in  evidence,  under  the  ge- 
neral issue,  the  general  character  of  the  defendant  in  mitigation  of  damages.  Foot  v. 
Tracy,  1  Johns.  Cas.  46. 

The  plaintiff  may  his  rank  and  condition  in  life  to  aggravate  the  damages,  and  the 
defendant  may  to  mitig»te  them.  Lamed  v.  Buffingtou,  3  Mass.  Rep.  546. — Am. 
En. 

(fc)  In  an  action  for  seducing  plaintiff's  daughter,  it  was  proved  that  she  had  con- 
nexion viih  a  person  before  her  acquaintance  with  defendant.  Lord  EllenbohoUgh 
would  not  permit  evidence  of  her  general  chai'acter  for  chastity,  as  no  evidence  of 
general  bad  character  had  been  siven,  and  held  that  the  evidence  iimst  be  confined 
to  the  specific  charge  by  the  defendant.  Banifield  v.  JMassey,  1  Camp.  Rep.  460, 
Etvide  Dndd  v.  J\  orris,  3  Do.  519,  and  Liguii  v.  Ford,  5  Muiif.  Rep.  10. 

In  JMtissucliusetts,  it  was  decided,  that  in  an  action  by  a  woman  for  a  breach  of 
promise  of  mari'iage,  and  for  seduction,  the  defendant  cannot  give  in  evidence  in 
mitigation  ot  damages,  the  general  6ac/ character  of  the  plaintiff  as  to  chastity,  which 
she  acquired  after  the  seduction.     Boynton  v.  Kellogg,  3  Mass.  Rep.  ISO. 

Where  character  is  in  issue,  evidence  of  puljlic  opinion  is  admissible,  ibid. 

In  Sontli  Carolina,  it  was  held,  that  in  an  action  of  crim.  con.  the  misconduct  of 
the  wife,  before  her  seduction  by  the  defendant,  may  be  given  it»  evidence.  Torre 
V.  Summers,  2  J^'ott  i^  M'  Cord's  Rep.  207.— Am.  Eu. 


14;  GENERAL  RULES 

Ch.  I.       piofcssioii  it  13  to  follow  law  suits  ;  and  it  is  difficult  to  draw  the 
Character    line  between  that  and  acting  as  a  barrator  ;  therefore  it  makes 

ot  parties.     .  /•      i  •  i  , 

it  necessary  tor  him  to   know  what  particular  facts   are  to  be 


Bul.N.P.29o  gi^6"  'II  evidence,  that  he  may  be  prepared  to  show  that  he  was 
fajrly  employed  in  those  cases,  and  acted  in  his  profession. 

But  in  other  criminal  cases  the  prosecutor  cannot  enter  into 
fie  defendant's  character,  unless  the  defendant  enable  him  to 
do  so  by  first  calling  witnesses  in  support  of  it ;  and  even  then 
the  prosecutor  cannot  examine  to  particular  facts,  the  general 
character  of  the  defendant  not  being  put  to  issue,  but  coming  in 
collaterally. 

The  mode  in  which  a  defendant  in  a  criminal  prosecution  is 
permitted  to  support  his  character,  is  by  calling  witnesses  who 
have  known  him  for  a  length  of  time,  and  who  will  say,  on  their 
oaths,  that  his  general    character  has  always  been  good.     If  a 
man  be  indicted  for  treason,  for  murder,  or  for  theft,  and  a  num- 
ber of  witnesses  say  that  his  general  conduct  and  character  has 
been  that  of  a  loyal,  a  humane,  or  an  honest  man,  this  evidence 
goes  strongly  to  fortify  the  presumption  of  his  innocence  ;  and, 
in  a  case  depending  merely  on  doubtful  circumstances,  often 
Auor.Gfneial  produces  considerable  effect  on  the  minds  of  a  jury.     But  such 
'  ■  ^'f^."p'"p   evidence  is  only  admitted  in  prosecutions  which  subject  a  man 
B.  Citeda       to  corporal  punishment,  and  not  in   actions  or  informations  for 
^2^'  nUi)'    penalties,  though  founded  on  the  fraudulent  conduct  of  the  de- 
fendant.* {I) 

{!)  In  capital  casesthe  defendant  may  give  his  general  character  in  evidence,  after 
which  the  prosecutor  may  disprove  such  testimony.  Common-wealth  v.  Hardy,  2 
J\Iass.  Rep.  317. 

Per  Paissons  C.  J. — General  character  maybe  given  in  evidence  on  behalf  ot 
defendant  in  all  criminal  prosecutions,  ibid. 

Sucii  evidence  is  entitled  to  but  little  weight,  unless  the  fwct  is  dubious,  and  the 
testimony  presumptive.    The  State  v.  JVells,  1  Coxe's  Sep.  424.- — Am.  Ed. 

•  In  the  course  of  ihe  proceedings  on  the  bill  of  pains  and  penalties  against  the 
Queen  {Tues.  Oct.  17,)  it  appeare<l  that  a  person  of  the  name  of  Vimercati,  had 
been  employed  by  the  Crown  as  an  advocate,  to  assist  in  the  conduct  of  the  inquiry 
which  was  instituted  m  Milan,  previous  to  the  introduction  of  the  bill;  and  that 
another  person  of  the  name  of  Codazzi  had  been  employed  as  the  professional  agent 
of  the  then  Princess.  A  witness  of  the  name  of  0?nar/j  was  called  on  behalf  of  the 
Queen,  for  the  purpose  of  proving  that  he,  being  the  clerk  of  Codazzi,  had  been 
seduced  by  Vimercati  to  deliver  certain  papers  belonging  to  the  Princess,  which 
had  been  deposited  in  the  hands  of  Codazzi;  and  on  the  counsel  proceeding  to 
examine  him  as  to  a  supposed  conversation  with  Vimercati,  it  was  objected  to  by  the 
Solicitor  General.  It  w.is  afterwards  argued  at  gre.'it  length;  1st.  That  acts  ami 
declarations  of  an  agent  might  be  given  in  evidence,  (as  to  this  -jide  post,  20  [17  ;]) 
and  2dly.  That  there  was  in  the  present  case  evidence  to  shew  that  a  conspiracy 
existed  amongst  the  Italian  witnesses,  in  which  case  it  was  contended  that  the  act  of 
any  one  of  the  conspirators,  (which  it  was  argued  Vimercati  was.)  might  be  given  in 


OF  EVIDENCE. 


15 


The  subject  of  proof  being  ascertained  by  the  preceding  rules,      ch.  I. 
the  next  thing  which    must  be  attended  to  is,  that  the  best  evi-  Wl.atisihe 
dence  the  nature  of  the  case  will  admit  of   be  produced  ;  for  if  "  '^^'  ^"''^' 
it  appear  that  better  evidence  might  have  been  brought  forward,  ' 

the  very  circumstance  of  its  being  withheld,  furnishes  a  suspi- 
cion that  it  would  have  prejudiced  the  party  in  whose  power  it 
is,  had  he  produced  it.(m)  Thus,  if  a  written  contract  be  in  ex- 
evidence  to  Mffict  the  cre-lit  of  the  wliole  proceediDg.  When  the  arguineit  was 
concluded,  two  questions  were  put  to  the  Judges,  to  which  was  afterwards  added  a 
third  ;  and  on  Thursday,  IQtIi  Oct.  the  Lord  Ch.  Justice  of  the  King's  Bench,  deli- 
veretl  the  unanimous  opinion  of  the  Judges  on  the  several  points  submitted  to  them. 

1st.  They  held,  that  if  in  the  trial  of  an  indictment  for  any  crime,  evidence  had 
been  given  upon  tlie  cross  examination  of  witnesses  examined  in  chief  in  support 
thereof,  from  wliich  it  appeared  thut  A.  B.  not  examined  as  a  witness,  had  been 
employed  by  the  party,  preferring  the  indictment,  as  an  agent,  to  procure  and  exa- 
mine evidence  and  witnesses  in  support  of  the  indictment;  the  party  indicted  could 
not  be  permitted  to  exanune  C.  D-  as  a  witness,  to  prove  that  A.  B.  had  offered  a 
bribe  to  E.  F.  in  order  to  induce  him  to  give  testimony  touching  the  matter  in  the 
indictment  [E  F.  not  being  a  witness  examined  in  support  of  the  indictment,  oi' 
examitied  before   ii  was  so  proposed  to  examine  C.  D.) 

2d.  That  if  in  the  trial  of  an  indictment  for  any  crime,  evidence  had  been  given 
upon  the  cross  examination  of  witnesses  examined  in  chief  in  sup[iort  thereof,  from 
V  hich  it  appeared  that  A.  B.  not  examined  as  a  witness,  had  been  employed  by  llie 
party  preferring  the  indictwient,  as  an  agent  to  procure  and  to  examine  evidence 
and  witnesses  in  support  of  the  indictment;  the  party  indicted  could  not  be  per- 
mitted 10  examine  G.  H.  as  a  witness,  to  prove  that  A.  B.  had  offci-ed  him  a  bribe 
to  induce  him  to  tiring  to  him  papers  belonging  lo  the  party  indicted  (G.  //.  not  hav- 
ing been  examined  as  a  witness  in  su[)port  of  the  indictment.) 

3d.  That  on  the  prosecution  for  a  crime,  the  proof  whereof  was  supposed  to  con- 
sist wholly  or  in  part  of  evidence  of  a  conspiracy  entered  into  by  the  party  then  in- 
dicted and  under  trial,  so  that  the  conspiracy  was  lo  be  given  in  evidence  against 
him  ;  general  evidence  of  the  existence  of  the  conspiracy  charged  might  be  received 
in  the  first  instance,  alllmugh  it  could  not  affect  such  defendant,  unless  brougjit  home 
to  him,  or  to  an  agent  employed  by  him. 

4th.  That  the  same  rule  applied  if  a  def.ndant  sought  by  such  general  evidence 
in  the  first  instance,  to  affect  the  prosecutor  with  a  conspiracy  to  suborn  witnesses 
for  the  destruction  of  his  defence  ;  j)!  ovided  the  pro|)osetl  evidence  were  ])reviousiy 
opened  to  the  Court  as  in  the  case  of  a  prosecution  to  be  provetl  by  conspiracy. 

The  questions  put  to  the  Judges  being  not  only  general  in  tlieir  nature,  but  sup- 
posing several  different  cases;  the  Chief  Justice  felt  himself  under  the  necessity  of 
giving  the  reasons  of  the  Judges  at  considerable  length.  An  abridgement  of  the  re- 
sult has  been  here  attempted  ;  but  the  opinion  as  delivered  will  be  found  in  the  Ap- 
pendix. 

{in)  The  rule  that  the  best  evidence  which  (he  nature  of  the  case  admits  of  re- 
specting titles  lo  lanil,  is  inapplicable  in  Virginia.  Lyon  J.  dissenting.  Lee  v.  Tap- 
scott,  2  Wash.  Rep.  276. 

Sed  contra  in  Pennsylvania.  Pemi's  les.  v.  Hartman,  2  Ball.  Rep.  2.30. 

The  copy  of  a  letter  is  not  the  best  evidence.    U.  States  v.  Mitchell,  ibid  35". 

Nor  a  bill  of  lading  not  signed     IVood  v.  Roach,  ibid.  180. 

The  general  rule  in  the  text,  however,  is  recognised  in  Cooke  v.  JVoodroiv, 
5  Crunch.  Rep.  13.  Et  vide  Germunto-iun  v.  Livingnton,  2  Caines'  Rep.  lori, 
jyUlls  V.  T-ivist,  8  Johns.  Rep.  121.    Hilts  v.  Colvin,  U  Do.  182, 


16  GENERAL  RULES 

Ch.  L       istence  and  in  the  custody  of  the  party,  no  parol  testimony  can 

What  is  the  be  received  of  its  contents  ;  if  a  subscribing  witness  has  attested 

________^  'the  execution  of  a  deed,  he,  and  he  alone,  is  competent  to  prove 

it ;  because  no  other  person  can  be  so  fully  acquainted  with  the 
circumstances  of  the  case,  as  he  who  was  present  at  the  transac- 
tion.(n)     But  when   the  law  requires  the  best  evidence,  it  does 

The  meaning  of  this  rule  is,  that  if  the  best  legal  evidence  cannot  be  procured,  the 
next  best  legal  evidence  shall  be  admitted.  Per  Yeates  J.  Gray  v.  Pentland,  2 
Serg.&  R.  Rep.  34. 

W^ei'e  the  age  of  a  defendant  had  been  written  in  a  bible,  it  was  held,  that  such 
memorandum  whs  not  the  best  evidence  of  his  age,  but  that  he  might  prove  it  by  a 
persoa  who  swore  from  mere  recollection  of  the  fact  of  his  birth.  Ha~>okins  v.  Tay- 
lor,  I  M' Cord's  Rep.  164. 

If  ihe  record  of  a  foreign  Court  of  Admiralty  be  read  without  objection  at  the 
time,  it  is  too  late  to  object  to  it  after  ihe  argument  has  commenced .  Riisselr.  Un. 
Ins.  Co.  C.  C,  .ipril,  1806,  ^1/.  5.  Rep. 

Where  it  appears,  that  the  contract  on  which  the  action  was  brought,  was  in  wrt- 
tirg,  the  plaintiff  is  bound  to  produce  it.  Rogers  v.  Van  Hoesen  et  al.,\2  Johns. 
Rep.  221. 

Where  an  instrument  is  stated  only  as  an  inducement,  and  is  not  the  gist  of  the 
action,  though  a  sine  qua  7ion  of  recovery  ;  or  where  the  party  has  no  right  to  the 
possession  of  it,  he  may  prove  its  loss,  to  let  in  secondary  evidence.  Shillingerv. 
Dolt,  1  Con.  Rep.  147. 

Circumstantial  evidence  may  be  given  to  a  jury,  as  pi-esumptive  evidence  of  a 
fact,  which  could  not  have  happened,  unless  such  fact  had  pre-existed.  Hopkins  v. 
Be  Grafenreid,  2  Baifs  Rep.  190. 

If  evidence  be  offered  in  so  vague  and  uncertain  a  manner,  that  it  is  impossible  to 
know  what  it  is  intended  to  prove,  it  ought  to  be  rejected.  Duncan  v.  Findlay, 
6  Serg.  &  R.  Rep.  235. 

It  is  an  indispensable  rule  of  law,  that  evidence  of  an  inferior  nature,  which  sup- 
poses evidence  of  a  higher  nature  in  existence  and  which  may  be  had,  shall  not  be 
admitted.     Common-wealth  v.  Kiidson,  4  JMass.  Rep.  646. 

The  best  evidence  the  nature  of  the  case  will  admit,  must  be  produced,  unless 
that  of  an  inferior  nature  be  authorised  by  Statute.  Waterman  v.  Robinson,  5  Jlfass- 
Rep.SOa.  Rassettv.  Jlarshall,  9  Do.  3i2.  TauntonSJ S.  Boston  Turnp.  Corp. 
V.  Whiting,  10  Do.  oQJ. 

Charges  in  an  administration  account  for  the  payment  of  taxes  by  the  administra- 
tor, cannot  be  proved  by  the  testimony  of  witiiesses,  but  by  the  receipt  of  the  col- 
lector.    Hall  V.  HaWs  adms.  1  Mass.  Rep.  101. — Am.  Ed. 

(n)  The  old  rule  in  Westminster  Hallwas,  that  an  instrument  comingfrom  the  op- 
posite side,  after  notice  to  produce  it,  proof  from  the  party  who  called  for  it  was  not 
required  ;  the  very  circumstance  of  its  being  with  the  other  side,  being  prima  facie 
evidence  of  due  execution,  and  from  its  being  in  such  custody,  the  probable  igno- 
rance, in  (he  party  noticing,  of  the  names  of  the  witnesses.  Rex  v.  Middlezoy,  2 
Dwnf.  &  EasVs  Rep.  41.  But  in  Gordon  v.  Secretan,  8  East.  Rep.  548,  u  was 
ruled  that  a  party  calling  for  a  deed,  roust  prove  it  in  the  saoie  manner  as  if  it  had 
come  out  of  his  own  possession;  and  the  practice  extends  to  unsealed  as  well  as  seal- 
ed instruments.     Wetherstone  v.  Edgington,  2  Camp.  Rep.  94. 

A  certificate  of  a  public  officer  made  evidence  by  an  Act  of  Assembly,  is  admissi- 
ble,  though  the  officer  certifies  in  addition,  to  extraneous  matter,  not  e?idence. 
Johnson  i.  Hccker,  I  Ball.  Rep.  406. 


OF  EVIDENCE. 


17 


riot  require  all  the  evidence  which  might  be  given  ;  if  there  are       ch.  1. 
two  subscribing  witnesses  to  1  deed,  or  a  dozen  present  at  the  Wi>at  is  the 
making  of  a  verbal  contract,  the  evidence  of  any  one,  while  un-        ^Mience. 
contradicted,  is  sufficient ;  for  the  circumstance  of  the  others 


Quere.  Whether  the  certifitate  bj*  the  accovntant  of  the  Nwvy  Deparimcnt,  un- 
der the  seal  of  ihat  department,  is  evidenee,  Murray  v.  Wilson,  1  Binn.  Rep.  531. 

A  prolhouotaij's  entries  upon  the  record,  of  tlie  acknowledginunt  in  open  -^ourt 
of  a  deed  to  himself,  by  the  Sheriff,  and  his  cerlific^te  of  that  acknowledgment,  are 
evidenee  for  hira  in  an  ejectment  for  the  lanil.  liichets  v.  Henderson,  6  Binn.  Hep. 
133. 

A  genealogical  't^ble,  certified  under  the  seal  of  a  foreign  public  officer,  is  not 
evidence.     Les.  of  Baurt  v.  Day,  C.  C.  April,  1814,  M.  S.  Rep. 

A  report  of  surveyors  of  a  vessel  is  not  evidence  of  the  facts  staled  in  it,  hut  only 
that  a  survey  took  place.  Watson  et  at.  v.  Ins.  Co.  JV.  A.  C.  C.  April,  1808,  M. 
S.  Rep.     Coit  v.  Del.  Ins.  Co.  ibid.  Oct.  1809. 

But  the  deposition  of  surveyors,  1-  ft rriug  i;)  thiir  report,  as  to  the  condition  of 
the  vessel,  makes  it  evidence.     U.  States  v.  jyiitchell,  ibid.  Jan.  1811. 

In  the  Admiralty,  the  record  of  a  warrant  and  survey  of  a  vessel,  is  evidence  to 
prove  a  want  of  sea- worthiness,  in  an  action  by  the  insured  against  the  underwriter. 
Brown  v.  Girard,  4  Yeates''  Rep   115. 

Quere,  Whether  the  register  of  a  vessel  be  prima  facie  evidence,  that  she  belongs 
to  a  citizen  of  the  U.  States,  Dederer  v.  Del.  Ins.  Co.  C.  C.  ,1pril,  1807.  M.  S. 
Rep. 

An  entry  of  an  appointment  by  the  Governor,  in  the  register  kept  by  the  Se- 
cretary of  the  Commnnwealth,  is  good  evidence  of  such  appointment,  it  bemg  proved 
that  it  never  had  been  the  custom  to  record  commissions  at  length  JMooi'e  v.  Hous- 
ton, 3  Serff.  &  R.  Rep.  185. 

The  pnceedings  of  a  Presbytery,  are  evidence  of  a  suspension  or  discharge  of  a 
minister,  but  not  of  particular  facts  alleged.  Riddle  v.  Stephens,  "i  Ser£:  £J  R. 
Rep.  537. 

The  certificate  of  the  Secretary  of  State,  is  good  evidence  to  prove  that  a  foreign 
minister  was  received  by  the  government.  U-  States  v.  Little,  C.  C.  Oct.  1808, 
M.  S.  Rep. 

The  general  rule  is,  that  payments  made  ;to  any  other  person  than  the  plaintiff 
in  the  suit,  must  be  proved  by  the  oath  of  a  witness.  Cluggage  v.  Swan,  4  Binn, 
Rep.  150,     Cutbush  v.  Gilbert,  4  Sei^g.  &  R.  Rep.  556. 

The  list,  commonly  cdled  i.he  list  oi first  purchasers,  was  admitted  in  evidence  to 
prove  a  grant  by  William  Penn,  the  deed  of  which  was  alleged  to  be  lost.  Hurst  v. 
Bippo,  1  Ball.  Rep.  20. 

So  lo  shew  a  grant  to  the  Y>ersons,  under  wliom  the  plaintiff  claimed,  wilhout 
proof  of  the  loss  of  the  deed.    J\Iorris''s  les.  v,  Vandercn,  1  Ball.  Rep.  64. 

A  copy  of  a  deed  enrolled  in  the  King's  Bench,  in  England,  proved  before  the 
Loid  Mayor  in  London  to  be  a  true  one,  allowed  to  be  given  in  evidence  to  the 
jury  to  support  a  title  to  lands  in  Pennsylvania.  Hyani's  Les.  v.  Edwards,  1  Ball. 
Rep.  1 . 

In  an  action  for  the  price  of  goods  bought  of  a  third  person,  and  not  ol  the  plain- 
tiff it  is  not  competent  for  the  clerk  to  prove  that  he  made  an  entry  of  the  sale  in 
his  books;  the  books  themselves  must  be  produced.  Keely  v.  Ord et  al.  1  Ball. 
Rep.  310. 

If  the  signature  to  a  promissory  note  be  not  in  the  hand  writing  of  the  drawer,  but 
in  th'it  of  a  third  person,  who  had  been  requested  by  the  drawer  to  sign  it  for  him, 
such  third  pi  rson  must  be  protluced  ;  proof  of  the  hand  writing  is  not  sufficient, 
MKee  v.  Myer'sexs.  Addis.  Rep,  32. 

D 


j[g  GENERAL  RULES 

Ch.  L      not  being  produced,  does  not  incline  the  mind  to  suspect  tiiat 
What  is  the  ^hev  would  not  have  sworn  the  same ;  as  the  other  party  might 

best  evidence.        "' 


Where  disbursements  are  proved  to  have  been  made  by  a  factor  for  his  principals 
but  in  consequence  of  a  loss  of  his  papers,  the  factor  is  unable  to  prove  the  amount> 
tlie  jury  may  make  a  reasonable  allowance  for  the  disbursements.  Sulger  v.  Den- 
ids,  2  Blnn.  Rep.  430, 

A  declaration  by  a  vendor  evincing  a  disposition  to  defraud,  is  not  evidence  against 
him  in  a  subsequent  and  distinct  transaction  with  another  person,  not  then  in  coa- 
templation.     Share  v.  Anderson,  7  Serg.  &  R.  Rep.  43. 

The  testimony  of  a  witness,  that  he  had  notice  ot  the  dissolution  of  a  partnership, 
cannot  be  given  in  evidence  in  a  suit  between  others,  in  which  the  dissolution  of  the 
partnership  at  that  time  becomes  a  material  question.  Shaffer  v.  Snyder,  7  Serg. 
&  R.  Rep.  503. 

The  power  of  an  agent  to  sell  lands,  must  be  in  writing,  and  proved  by  indifferent 
witnesses.  JVichohon's  les.  v.  Mifflin,  2  DaU.  Rep.  246.  S.  C  2  Teates''  Rep. 
33.  S.  P.  Jllerediih^s  les.  v.  Jlacoss,  I  Teates'  Rep.  200.  Girar'd^s  Les.  v. 
Krebbs  et  al.  cited  2  Teates'  Rep.  38.    Les.  of  Plumsted  v.  Rudebagh,  1  Do.  502. 

In  JMassachusets,  it  has  been  decided,  that  the  agency  of  a  person  who  received 
his  appointment  in  writing,  cannot  "be  proved  by  the  testimony  of  the  agent,  unless 
it  be  lost  or  destroyed.  Per  Sedgwick  J.  The  Proprietors  of  Kennebeck  Pur- 
chase V.  Call,  1  Mass.  Rep.  483. 

The  testimony  of  a  persoti  to  whose  care  a  paper  has  been  entrusted,  that  he  had 
made  search  and  could  not  find  it,  is  evidence  of  its  loss.  Jones  et  al.  v  Fales,  5 
Mass.  Rep.  101. 

Facts  which  have  become  matter  of  record,  if  the  record  be  lost  or  destroyed, 
may  after  proof  of  the  existence  and  loss  of  the  record,  be  proved  by  secondary 
evidence.  The  liihab.  nf  Stockbiidgc  v.  The  Inhab,  of  IF  est  Stockbridge,  12  Do. 
400. 

Thus  the  incori)orarion  of  a  town  may  be  proved  by  parol  evidence,  if  the  act  of 
incorporation  be  lost  or  destroyed,  ibid."^ Dillingham  v.  Snow,  et  al.  5  Do.  547. 

If  the  deponent  is  in  Court,  his  deposition  cannot  be  read.  Doe  ex  d.  Sergeant  v. 
Adams,  I  Tijl.  Rep.  197. 

A  deposition  illegally  tiken,  cannot  be  read  after  deponents  decease,  upon  the 
principle  that  it  is  the  best  evidence  which  can  be  produced.  Johnson  v.  Clark, 
ibid.  449. 

The  deposition  of  a  former  town  clerk,  may  be  admitted  to  shew  his  general 
mode  of  transacting  his  official  business.    Taylor  v.  Holcomb,  2  Tyl.  Rep.  344. 

Parol  eviiience  cannot  be  admitted  to  prove  that  which,  if  it  exist,  ought  to  ap- 
pear on  record.  Franklin  et  al.y.  Bro~.unson,  ^  Tyl.  Rep.  103.  Pitts  v.  Clark, 
2  Root's  Rep.  I'll. 

A  surrender  of  the  principal  into  Court,  can  only  be  proved  by  the  record.  Fitch 
V.  Hall,  Kirb.  Rep  18. 

In  an  action  for  giving  the  plaintiff  a  dose,  in  some  tody,  his  molher  was  allowed 
to  testify  to  his  complaints  ne.xt  morning,  and  from  the  necessity  of  the  case,  what 
he  said.    Goodivin  v.  Harrison,  1  Root's  Rep.  80. 

PiU'ol  evidence  of  the  contents  of  a  libel  is  not  evidence,  unless  it  be  lost,  de. 
stroyed,  or  in  the  hands  of  the  (lefendant.   Aspenviall  v.  JV'idtemore,  ibid  408. 

How  far  the  copy  of  a  <)eed  is  evidence,  which  is  not  directed  by  law  to  be  en- 
rolled.  Vide  Carroll's  les.  v.  IJeiuellen,  1  Har.  &JM'Hen  Rep.  162. 

The  copy  of  a  will,  with  letters  testamentary,  under  the  hand  and  seal  of  the  de- 
puty commissary,  was  .adinilted  in  evidence,  on  proof  tliat  diligent  search  had  been 
made  for  the  original,  and  that  the  signature  was  in  tiie  hand  writing  of  the  deputy 
commissary.  Smith's  les.  v.  Steele,  ibid.  419. 


OP  EVIDENCE.  ^  q 


have  called  them,  had  he  not  known  that  the  fact  deposed  by  one      ch  i 
was  consistent  with  the  truth. (o)  Wh 


len  more 


There  are  two  cases  indeed  in  which  our  law  requires  at  least  ^g^g^g"^  ^'''_ 
two  witnesses;  viz.  on  indictments  for  perjury  and  for  treason.(jp)' 


'-> 


In  old  transac'ions,  hearsay,  where  it  is  the  b^st  evidence  the  nature  of  the  case  vi,jscot  10     * 
will  admit,  will  be  admitted.    Clairborne  v.  Parrish,  2  Wash.  Rep.  146.  Mod.  193. 

Ill  an  account,  it  is  not  suffLcit-nt  to  charge  balances  of  other  accounts,  without 
pioduciiig  and  proving  them  as  alleged  to  have  been  settled,  if  they  exist,  unless  the 
def'  ndant  acknowledged  them  to  be  just,  and  promised  payment.  Lewis  v.  £acon, 
3  Hen  &  Muiif.  Rep.  89. 

The  book  ot  the  Judge  of  the  Court  of  Probates,  containing  the  record  of  the  pro- 
bate of  a  will,  m<iy  be  given  injeviilencc  in  ejectment,  it  it  be  proved  that  the  original 
will  was  lost.   Jackson  ex.  d.  Donuldson  v.  Lucett,  2  Caincs'  Rep.  .363 

The  confession  of  the  plaintiff  that  the  timber  was  taken  by  a  bailiff  under  an  at- 
tachment, is  not  sufficient  evidence  of  the  attachment,  but  the  record  itself  ought  to 
be  produced.   Jennev  v.  Jeliffe,  6  Johns.  Rep.  9. 

The  Court  refused  to  receive  parol  evidence  of  the  contents  of  a  certiorari ;  the 
original  or  a  sworn  copy  must  be  proiiuced.  Brush  v.  Taggart,  7  Johns.  Rep.  19. 
Et  vide  Foster  v.  Tridl,  12  Johns.  Rep.  456. 

In  an  action  of  trespass  for  entering  plaintiff's  office  and  taking  a  bill  of  lading,  &c. 
evidence  may  be  given  of  the  contents,  &c.  of  such  bill,  without  notice.  S.  P.  Jack- 
son ex.  d  Uvingston  v.  Kisselbrack ,  10  Do.  336. 

Parol  evidenct-  of  a  disclaimer  of  title  to  real  property,  is  not  admissible.  Jackson 
ex.  d.  Van  AlleJi  et  al.  v.  Vosburgh,  7  Johns.  Rep.  186.  Brant  v.  Livermore, 
10  Do.  358. 

Where  a  fiote  is  given  to  settle  an  account,  the  plaintiff  cannot  give  in  evidence 
the  account,  nor  can  he  give  parol  evidence  of  the  contents  of  the  note,  unless  he 
clearly  shews  that  the  note  has  been  lost  or  destroyed.  Angel  y.  Felton,  8  Johns. 
Rep.  149. 

It  is  competent  for  a  defendant  in  ejectnaent  to  prove  that  a  person  claiming  as 
patentee,  although  of  the  same  name,  was  not  the  patentee  intended  by  the  grant. 
Jackson  ex.  d.  S/mllz  etal.  v.  Goes,  13  Johns.  Rep.  518. 

How  fs,r  want  of  intention  to  violate  a  penal  Statute  is  admissible  in  bar  of  the 
penalty.  Sttirges  v.  Maitland,  Jlnth.  JV.  P.  15S. — Am.  Ed. 

(o)  A  party  has  a  right  to  call  as  many  witnesses  as  he  thinks  necessary  to  make 
out  his  case  ;  and  the  Com;  will  not  interfere,  unless  there  is  proof  of  oppression- 
De  Benneville  v.  De  Benneville,  1  Binn.  Rep.  46.  S.  C.  3  Yeates'  Rep.  558.— 
Am.  Ed. 

(p)  The  Constitution  of  the  United  States  directs,  that  "  no  person  shall  be  con- 
victed oi  treason,  unless  on  the  testimony  of  t~iVO  witnesses  to  the  same  overt  act, 
or  on  confession  in  open  Court."  Jlrt.  3.  sec.  3.  Vide  .ict  of  30th  April,  1790, 
2  L.  U.  S.  92. 

Under  the  Act  of  Assembly  of  Pennstjlvania,  on  an  indictment  for  treason,  the 
defendant's  confession  proved  by  two  witnesses,  is  not  sufficient  to  convict  him.  But 
a  confession  is  good  by  way  of  corroboration.  Th-M'efore,  where  a  delendant  was 
proved  guilty  of  one  overt  act,  it  was  held,  that  bis  confession  might  be  produced  to 
substantiate  another  species  of  treason.  Commonwealth  v.  Roberts,  1  Dull  Rep. 
39.    Commomvealth  v.  M'  Carty,  2  Dall.  Rep.  86. 

On  an  indictment  for  pctjury,  fwo  -witnesses  are  not  necessary  to  disprove  the 
fact  sworn  by  the  defendant,  but  where  there  is  but  one  witness,  some  otbt  r  evi- 
dence  ought  to  be  adduced.  State  y.  Jfayward,  I'JVott  &  M' Cofd's  Rep.  549.-— 
Am.  Ed. 


YiiU-  4  Black 
Com.  357. 


20  GENERAL  RULES 

Ch.  L  In  the  case  of  perjury  the  reason  is  obvious,  for  if  only  one  wit- 
When  more  ness  were  to  be  called  to  contradict  the  oath  of  the  defendant, 
ness  is  requir- there  would  be  oath  against  oath,  and  both  being  equally  entitled 
*^^-  to  credit,  the  jury  could  not  conclude  that  the  defendant  had 

sworn  falsely.  A  reason  something  like  this  has  been  assigned 
for  requiring  two  witnesses  in  treason  ;  for  it  has  been  said  that 
there  is  the  accused's  oath  of  allegiance  to  counterpoise  the  in- 
formation of  a  single  witness  :  but  the  true  reason  which  ijiduced 
the  Legislature  to  requ'rre  two  witnesses  in  such  cases,  undoub- 
tedly was,  a  due  regard  to  the  lives  and  liberties  of  men  ;  which 
in  heated  and  intemperate  times,  would  be  ttiuch  more  liable 
to  danger  from  pretended  plots  and  conspiracies,  if  one  witness 
was  permitted  to  convict  them  of  such  oft'ences  ;  and  therefore 
7  &  8  W.  3,  the  Statute  of  7.  4-  8.  W.  3.  enacts,  that  no  person  shall  be  tried, 
'  '  "  "  or  attainted  of  such  treason  as  induce  corruption  of  blood,  or  of 
mis-prison  of  such  treason,  but  by  the  oaths  and  testimony  of  two 
lawful  witnesses,  either  both  of  them  to  the  same  overt  act,  or 
one  of  them  to  one  and  the  other  of  them  to  another  overt  act  of 
the  .'••ame  treason,  unless  the  party  indicted  and  tried  shall  wil- 
lingly and  in  open  Court  confess  the  same,  or  shall  stand  mute 
or  refuse  to  plead,  or  in  cases  of  high  treason  shall  peremptorily 
challenge  above  the  numb.'r  of  thirty-five  of  the  jury  :  and  by 
Sect.  4.  another  section  it  is  enacted,  that  if  two  or  more  distinct  trea- 

sons of  divers  kinds  are  alleged   in  one  indictment,  one  witness 
produced  to  prove  one  of  the  said  treasons,  and  another  witness 
to  prove  another  of  the  said  treasons,  shall  not  be  deemed  to  be 
two   witnesses  to  the  same  treason  within  the  meaning  of  the 
1  E(Uv.  6,       Act.     This  Act  was  little  more  than  a  re-enactment  of  the  pro- 
5&6E(]wT6  visions  of  two  former  Statutes;  though  it  may  be  proper  to  ob- 
c.  11,  s.  I'i.     serve,  that  petit  treason  is  particularly  mentioned  in  the  first  of 
them,  and  therefore  two  witnesses  are  still  required  to   prove 
that  offence,  and  every  other  species  of  treason,  unless  where 
the  general  provisions  of  these  Statutes  have  been  restrained  by 
1  &  2  Phil.  &  other  Statutes.     This  has  been  done  in  the  cases  of  treason  con- 
Mary,  c.  10.   cerning  the  current  coin   or   counterfeiting  the    King's  signet, 
same'year,     p''ivy  Seal,  and  great  seal  or  sign  manual,  or  bringing  counter- 
ed 11,  s.  3.      fpit  coin  into  the  realm,  or  for  any  offence  by  impairing,  counter- 
easi,'i  Leach. feituig,  or  forging  the  current  coin,  which  has  been  held  to  ex- 
Crovin  Law,   ^end  to  all  offences  touching  impairing  the  coin,  which  should 
39  &  40G.  3,  afterwards  be  made  treason.     And  by  a  late  Statute  made  for 
*^'  the  immediate  protection  of  the  late   King's  life,  it  is  enacted, 

that  in  all  cases  of  high  treason,  when  the  overt  act  alleged  in 
the  indictment,  is  the  assassination  of  the  King,  or  any  direct 


OF  EVIDENCE.  Oi 

attempt  against  his  life,  or  against  his  person,  the  prisoner  shall       ch.  I. 
be  tried  according  to  the  same  order  of  trial  and  upon  the  like  When  more 
evidence  as  if  he  stood  charged  with  murder.  nuss  Ts^rcqiih'- 

The  law  never  gives  credit  to  the  bare  assertion  of  any  one,  '^''• 

however  high  his  rank   or  pure  his  morals,   but  always  requires  "        

the  sanction  of  an  oath  :*  It  further  requires  his  personal  at- 
tendance in  Court,  that  he  maybe  examined  and  cross  examined 
by  the  different  parties  ;{q)  and,  therefore,  in  cases  depending  on 
parol  evidence,  the  testimony  of  persons  who  are  themselves 
conusant  of  the  facts  they  relate,  must  in  general  be  produc- 
ed ;(r)  for  the  relation  of  one  who  has  no  other  knowledge  of  the 
subject  than  the  information  which  he  has  received  from  others, 
is  not  a  relation  upon  oath  ;  and,  moreover,  the  party  against 
a ___^ 

•  In  the  Court  of  Chancery,  a  peer  of  the  realm  puts  in  his  answer  upon  honour, 
but  his  affidavit,  ans-wer  to  interrogatories,  and  examination  as  a  7vitness,  must  be 
on  oat/i.  JlTeers  v.  Lord  Stoiirton,  I  P.  Will.  140.  See  also  Lord  S/uifteshury  v. 
Lord  Digby,  3  ^lod.  99  ;  and  if  one  who  is  silting  as  Judge  orjur3maii  hapi>en  to 
know  a  fact  with  which  the  other  Judges  or  jurors  are  unacquainted,  he  is  sworn 
and  openly  examined  as  to  the  fact,  the  sam*-  as  any  other  witness,  and  equally  lia- 
ble to  cross-examination.  Vide  2  St.  Tr.  809  ;  3  St.  Tr.  I4l  ;  5  St.  Tr.  98 ;  Kel.  12. 

Though  the  party  has  a  right  to  insist  on  the  examination  of  witnesses  on  oath,  he 
may  waive  this  right,  and  bind  himself  by  their  declarations.  Thus,  in  an  action 
for  goods  sold  and  delivered,  the  defendant  having  said,  that  he  would  pay  the  mo- 
ney,'if  .4  would  declare  that  he  had  delivered  the  goods  ;  the  declaration  of  ^4.  that 
he  had  delivered  ihem,  was  held  by  LordELLENBoitouGH  to  be  evidence  against  the 
defendant,  after  the  death  of  .4.  2)a«zeZ  v./V«,  Sittings  after  Mich.  Term,  1806. 
And  in  subsequent  cases  it  has  been  holden  that  such  declarations  may  be  given  in 
evidence  even  during  the  life  lime  of  the  person  making  it.  Vide  Williams  v.  Innes, 
1  Campb.  364,  and  other  cases  there  cited,  and  the  note  post  [149.] 

[q)  The  jury  cannot  lake  out  with  them  depositions  unless  by  consent.  White  v. 
Beshing,  1  Yeates''  Rep.  400.  Et  vide  Ferine  v.  Van  J\'ote,  1  Soutli's  Rep.  146. 
Jkrrick  V .  Blair ,  1  Johns.  Ch.  Rep.lOl.  Bedin'gtony.  Sout/iat,  4  Price's  Ex. 
Rep.  232.— A>r.  Ed. 

(r)  The  law  requires  the  sanction  of  an  oath  to  all  parol  testimony.  Gray  v. 
Goodrich,  7  Johns.  Rep.  95.  Et  vide  Overseers  of  Germuntoivn  v.  Overseers  of 
Livingston,  2  Caines''  Rep.  107.  Jackson  ex.  d.  Watson  v.  Cris,  11  Johns.  Rep.i5~. 
Clairborne  v.  Parrish,  2  Wash.  Ee[j.  146.  Davis  et  al.  v.  Wood,  1  Wheat.  Rep. 
6.  Philips  \.  Thompson  et  al.  1  Johns.  Ch.  Rep.  140.  Woodardw.  Paine  et  al.  15 
Johns.  Rep-  493. 

An  opinion  said  to  have  b;  en  expiessed  by  one  of  the  devisees,  is  not  ailmissiblfj 
to  prove  ibe  testator  was  insane.  Phelps  v.  Hurtivell,  1  Jilass.  Rep.  71. 

The  declarations  of  a  supposed  grantor  in  a  deed,  after  its  ilate,  "  that  he  nev  r 
hadmade  a  deed''  cJc.  cannot  be  given  in  evid.Mice  against  the  paity  cbiiming under 
it,  after  ihergrantor's  death.     Barllet  v.  Delprat  et  al.  4  .Mass.  Rep.  702. 

The  deposition  of  the  mother  of  a  baslRrd  child,  taken  ex  parte,  and  before  any 
suit  was  commenced,  cannot  be  read  in  evidence,  though  the  motlii-r  be  dead. 
JM' Donald  v.  Sekci  Men  of  Greeitwich,  1  Root's  Rep.  134. 


gg  GENERAL  RULES 

Ch.T.       •whom  such  evidence  should  be  permitted,  would  be  precluded 
Hearsay     from  his  benefit  of  cross-examination.     The   few  instances  in 
e\i(  i-nce.     ^yf^i^h  this  general  rule  has  been  departed  from,  and  in  which 
°  hearsay  evidence  has  been  admitted,  will  be  found,  on  examina- 

tion, to  be  such  as  were,  in  their  very  nature,  incapable  of  po- 
sitive and   direct  proof.     Of  this  kind  are  all  those  which  can 
enlj  depend  on  reputation.     The  excluding  of  hearsay  evidence 
in  questions  oi pedigree  or  custom,  would  prevent  all  testimony 
whatever;  for  the  evidence  of  any  living  witness  of  what  passed 
within  the  short  time  of  his  own  memory,  would  often  be  insuf- 
ficient in  the  former  instance,  and  could  never  avail  in  the  other, 
where  the  usage  and  understanding  of  ancient  times  must  be 
proved  to  establish  the  right  which  is  claimed.     In  these  cases, 
therefore,  the  law  departs  from  its  general  rule,  and  receives 
evidence  of  the  declarations  of  deceased  persons,  who,  from  their 
situation,  were  likely  to  know  the  facts  ;   and  also  the  general 
reputation  of  the  place  or  family  most  interested  to  preserve  in 
memory  the  circumstances  attending  it.  Any  thing  which  shews 
such  reputation  is,  on  a  question  of  this   sort,  received  in  evi- 
dence, though  oftentimes  wholly  inadmissible  in  other  cases. (s) 
Therefore,  if  a  question  arise  as  to  the  legitimacy  of  A.  decla- 
rations of  his  father  and  mother  deceased,  as  to  whether  they  were 
married,  and  whether  the   party  was   born  before  or  after  mar- 
riage, are  good  evidence,  but  not  to  prove  that  the  child  born  in 
Mos^s'^^Co"v)^  '^^'^^^'^'^^  ^^  illegitimate  for  want  of  access  (1)  {t).     So,  to  prove 
491.    Seetiiisthe  State  of  a  family,  as  who  a   man  married,  what  children  he 
b^eT's  "'4  '1^^''  '^vhether  legitimate  or  illegitimate,  that  ./?.  died  abroad,  &c. 
declarations  of  deceased  members  of  the  family,  whether  con- 
nected by  blood  or  by  marriage,  are  admissible,  but  those  of  de- 
{'>\  Vowiesr  ceased  neighbours   or  acquaintances   are   not  so.(2)     In   these 
Young.  13       cases  also,  the  recital  in  deeds,(3)  the  finding  of  a  special  ver- 

YfS.,lui>.140. 

Whiilock  V.       

liakcr,  Ibid.         "Yhe  declarations  of  one  co-obligor  not  sued  with  the  defendant  are  not  evidence. 
^ ^ ^ ■  Sheriffs.  Forgue,  ibid.  502. 

(."5)  B.  X.  P.        Wht  re  tiie  defendant  claimed  under  a  corporation,  the  evidence  of  ihe  clerk  as 
233.291,5.      to  the  declarations  of  the   trustees  is  not  legal.     Jackson  ex.  d.  Donally  v.  Waish, 
3  Johns.  Hep.  2-2f). 
•  In  a  writ  ofhoaiine  replegiando,  the  confessions  of  the  officei'S  who  seized  the  per- 

sons claimed  ;is  slaves,  cannot  be  given  in  evidence  against  the  party  making  the 
avowry.     Aza  v.  Eitlingev,  1  Jinth.  A".  P-  Cas.  47. — Am.  Ed. 

(s)  When  no  act  of  incorporation  can  be  found  of  a  parish,  which  had  existed  more 
than  forty  years,  the  Court  admitted  pi'oof  of  its  incorporation  by  reputation.  Dih 
Ungham  v.  Snaxo  et  al.  5  Jlass.  Hep.  547. — Am.  Ed. 

(?)  Vide  Bowles  v.  Bingham,  2  Munf.  Rep.  442.— Am.  Ed. 


OF  EVIDENCK,  §3 

diet  between  otlier  members  of  the  family,  stating  a  pedigree,      ch,  i. 
inscriptions  on  old  gravestones,  heralds  books,  entries  in  family    ^^!^'J^^,^ 
bibles,  the  statement  of  a  pedigree  in  a  bill*  in  Chancery,(l)  a 


(1)  Taylor  V. 


•  It  has  been  supposed,  (vide  Phillips's  Law  of  Evidence,  2d  ed.  263, and  4lh  ed.  g  "^f '/„■!  " 
356,)  that  these  cases  have  betn  oveciuled  by  the  decision  of  the  House  of  Lords, 
and  thi-  answers  of  the  Judges  in  the  Banbury  Peerage  case.  In  answer  to  a  ques- 
tion put  to  the  latter,  tliey  delivered  their  opinion,  lliat  a  bill  in  equity,  "  filed  for 
tlie  purpose  of  eslablisldng  the  legitimacy  of  a  particular  person,  or  depositions  taken 
under  it,  cannot  be  rtctived  in  evidence  in  the  Courts  below,  on  the  trial  ol  an  ac- 
tion of  ejectment  against  a  party  not  claiming  or  deriving  title  under  the  plaintiff  or 
defendant  in  the  Chancerj  suit,  either  as  evidence  of  the  facts  therein  depos -d  to, or 
as  declarations  respecting  pedigree."  It  should  here  be  observed,  that  the  bill  ia 
the  case  referred  to  them,  itself  showed  that  the  legitimacy  of  the  plainlifT  was  a 
mattrr  of  dispute,  so  that  it  was  impossible  to  consider  it  as  the  admitted  reputation 
of  the  family,  that  the  party  was  legitimate.  But  in  the  case  referred  to  in  the  text, 
the  pedigree  formed  no  part  of  the  controversy,  but  was  merely  the  statement  of 
the  party's  situation  to  shew  that  he  was  in  a  condition  to  contend  for  the  right  which 
was  disputed;  and  it  must  be  observed,  that  in  answer  to  the  same  question,  which 
was  general,  "  whether  f.ny  bill  in  Chancery  could  be  received  in  evidence  in  a 
Court  of  Law  to  prove  any  facts  either  alleged  or  ilenied  in  such  bill,"  the  Judges 
said,  that  "generally  speaking,  a  bill  in  Chancery  cannot  be  read  in  evidence  in  a 
Court  of  Law,  to  prove  any  fact  either  alleged  or  denied  in  such  bill.(|)  But  whe- 
ther any  possible  case  might  be  put  which  would  lorm  an  exception  to  such  general 
rule,  the  Judges  would  not  undertake  to  s.iy.''  Vide  2  Sehv.  JW  P.  084.  And  in 
the  subsequent  case  of  the  Berkley  Peerage,  Mr.  Justice  Lawresce  said,  "  it  is 
reasonable  only  that  such  declarations  should  be  received  as  have  in  their  favour  a 
presumption  of  being  consistent  with  the  truth.  This  presumption  must  depend 
on  circumstances;  and  if  the  relator  has  no  interest  to  serve,  or  any  object  to  answer, 
as  may  be  the  case,  where  declarations  are  made  subsequent  to  the  commencement 
of  a  suit ;  and  iftliere  is  no  ground  for  supposing  that  the  relator's  mind  hnd  any 
bias,  it  is  not  unreasonable  to  conclude  that  he  has  noteseeeded  or  stopped  short  of 
the  limits  of  truth.  In  such  a  case,  the  admission  of  their  declarations,  though 
without  the  sanction  of  an  oath,  and  without  any  opportunity  of  cross  examination, 
may  be  attended  with  less  inconvenience  than  would  follow  from  a  total  rejection  of 
the  evidence  ;  but  where  a  dispute  or  doubt  exists,  and  members  of  the  family  are 
produced,  and  even  examined  on  oath,  as  witnesses  in  a  cause  ;  such  a  proceeding 
destroys  all  the  weight  and  credit  which  is  due  to  an  unbiassed  declaration,  and  is 
not  admissible  against  a  person  who  was  no  parly  to  the  suit,  much  less  would  any 
verbal  declaration  or  written  memorandum,  made  under  such  a  bias,  be  admissible. 
Vide  2  5'e/w.  684.  On  the  same  principle,  where  the  owner  of  a  particular  farm 
was  called  upon  to  repair  a  road,  Mr.  J.  Dampier  refused  to  admit  an  award  made 
many  years  before,  as  evidence  of  his  liability  ;  for  the  accounts  which  deceased  wit- 
nesses might  have  given  to  the  arbitrator  could  not  have  been  received,  as  being 
va&Af:  post  litem  motam  ;  and  if  they  were  not  admissible,  his  opinion,  founded  on 
such  testimony,  could  be  entitled  to  no  greater  degree  of  weight.  But,  on  the  con- 
trary, where  depositions  taken  on  ojie  custom  of  a  manor,  incidentally  mentioned 
another ;  they  were  considered  admissible,  even  as  declarations,  because  there 
was  no  dispute  respecting  the  custom  they  were  to  support.  Freeman  v.  Phillips, 
post.  [64] 

(t)  The  ancient  rule  was,  that  the  allegations  of  a  bill  in  Chancery  was  evidence 
against  the  complainant,  the  modern  rule  is  different,  JViblick  v.  Ilazebrig's  exs. 
I  Marsh.  Rep.  93.— Am.  Ed. 


34)  GENERAL  RULES 

Ch.i.       paper  writing  purporting  to  be  an  old  will  in  a  cancelled  state. 
Hearsay     which  nevcr  appeared  to  hare  been  acted  upon,  but  which  was 

evidence 

'     found  amongst  the  title  deeds  of  a  former  possessor  of  the  es- 

m  n    d      i^^^y  0)  ^^  the  like,  are  good  evidence. (u)     But  where  there  is 

Jofiitson  V.       _____^___^___^_^_^__^__________ 

brokr    11  (u)  Evidence  of  heDVsay  was  permitted  to  be  gi?en  to  prove  pedigree.  Strickland  s 

East,  503.  les.  v.  Poole,  I  Ball.  Rep.  14.  Douglas  v.  Sanderson,  1  Yeates^  liep.  15  S.  C. 
2  Ball.  Hep.  116. 

Evidence  ot  hearsay  from  the  father  and  mother,  is  not  adniissiblc  in  a  question 
of  age.   Les.  of  Alberlsoyi  v.  Robeson,  1  Dull.  Rep.  9. 

What  has  been  said  by  a  decewsed  person,  in  relation  to  a  boundary,  is  evidence. 
Cattfman  v.  Congregation  of  Cedar  Spring,  6  Biim  59 

And  such  evidence  is  admissible,  although  an  implication  follows  from  it  that  a 
survey  was  made.   Hamilton  v.  JMinor,  2  Serg.  &  R.  Rep.  70. 

The  rule  tt^ post  litem  motam,  it  seems,  in  r»-s;)ect  to  declarations  in  relation  to 
pedigree,  has  not  been  recognised  in  the  U.  States.  Baudereau  v.  J^ontgomery, 
C.  C  JV'ot'.  1821.  M  S.  Rep. 

An  ex  parte  affidavit  maile  abroad,  may  be  admitted  to  prove  pedigree  ;  and  the 
identitv  of  a  person,  so  far  as  respects  marriage,  but  not  to  establish  an  independent 
fact.  Fogler's  les.  y.  Simpso7i,17H7,  cited  2  Ball.  Rep.  117.  1  Yeates' Rep.  17. 
Winders.  Little,  1  Yeates'  Rep.  152.  l^es.  of  Lilly '•■.Kintzmiller,\  Yeates'  Rep.2S. 

But  it  seems  an  ex  parte  affidavit  made  in  another  State,  would  not  be  admitted 
to  prove  pedigree.    Bouglas''s  les.  v.  Sanderson,  2  Ball.  Rep.  118. 

Depositions  of  deceased  witnesses,  whether  in  or  out  of  the  State,  in  a  case  be- 
tween other  parties,  may  be  admitted  to  prove  pedigree,  and  that  whether  made 
after,  or  before  the  question  of  pedigree,  had  become  a  subject  of  controversy. 
Bordereau  v.  Moiitgomery,  C.  C.  JVov.  1821,  JW  S 

Ex  parte  depositions  are  not  admissible  to  establish  an  independent  title,  but  may 
be  read  in  evidence  of  boundary,  or  by  way  of  corroboration  of  other  testimony. 
Sturgeon-v.  Wavgh,  2  Yeates'  Rep.  A76.  Les.  of  Lilly  v.  KintzmiUer,  1  Yeates^ 
Rep.  28. 

Evidence  by  hearsay,  and  general  reputation,  is  sufficient  as  to  pedigree.  Jackson 
ex.  d.  Ross  et  al.  v.  Cooley,  8  Johns.  Rep.  99.  But  not  to  establish  the  freedom 
of  an  ancestor. J^OMs  et  al.  v.  Wood,  I  Wheat.  Rep.  6. 

Hearsay  evidence  is  incompetent  to  establish  any  specific  fact,  which  is  in  its  na- 
ture susceptible  ot  being  proved  by  witnesses,  who  speak  from  their  own  know- 
ledge. j\rima  Queen  and  child  v.  Hepburn,  7  CrancVs  Rep.  290.  Bavis  v.  Wood, 
1  Wheat.  Rep.  8. 

That  hearsay  evidence  supposes  some  better  evide'fice  which  might  be  adduced, 
is  not  the  sole  ground  of  its  exclus-ion.  Its  intrinsic  weakness,  its  incompetenc)  to 
satisfy  the  mind  of  the  existence  of  the  fact,  and  the  frauds  that  might  be  practised 
under  its  cover,  combine  to  support  the  rule  of  its  inadmissibility,   ibid. 

There  are  some  exceptions  to  this  rule,  viz.  cases  of  pedigree,  of  prescription,  of 
custom,  and  in  some  instances  of  boundary,  ibid.  290. 

The  circumstance  that  the  eye  witnesses  to  a  specific  fact  are  dead,  will  dot  jus- 
tify the  admission  of  hearsay  evidence  to  pi  ove  that  fact.   ibid. 

Reputed  boundaries  are  often  proved  by  the  testimony  of  aged  witnesses,  and  the 
hearsay  evidence  of  such  witnesses,  has  been  admitted  to  establish  such  lines  in  op- 
position to  the  caUs  of  an  ancient  patent.  Conn  et  al.  v.  Penn  et  al.  I  Peters'  Rep. 
496. 

Though  hearsay  and  reputation  maylbe  received  as  evidence  to  provi.- pedigree,  yet 
where  the  witnesses  are  not  connected  with  the  family,  ha\e  nn  personal  knowledge 
of  the  facts  of  which  they  speak,  and  have  not  de  iied  their  informatio:,  from  lursons 
coDiiected  or  particularly  acquainted  with  the  family,  but  speak  generally  of  what 


OF  BVIDEWCB.  Q- 

no  question  about  the  parents  of  a  person,  but  merely  as  to  the      ch.  I, 
place  of  his  birth, (1)  the  declarations  of  his  parents  or  others  as     Hf-arsay 
to  that  fact,  are  not  admissible.(a;)  Evidence. 

In  quffstions  about  a  right  of  way  also,  reputation  has  been  ~  ' 

received  ;(2)  and  to  prove  a  piece  of  land  parcel  of  an  estate,  de-  habit  ^Tts^ot"' 

Erith,  8  East, 

. say. 

they  hiive  httard  ami  understood  ;  such  evidtnce   is  insufficieut  for  that  purpose.  J;^/.  "••'^'  *' 
Jackson  ex.  d   Garland  v.  Browner,  18  Johns.  Hep.  37, 

A  register  of  birrhs  and  marringes  kepi  in  the  records  (if  a  town,  is  evid<;nce  of 
pedigree  and  heirship.     Jackson  ex.  d.  Miner  v.  Boiieham,  15  Johns.  Rep.  ^26. 

Hearsay  is  admissible  as  evidence  of  the  death  of  a  person,  ibid. 

Recitals  in  a  couveyancf  K:e  evid'  nci-  of  pedigree.  Les.  of  Paxton  v.  Price,  1 
Yeates'  Rep.  500.     .Morris's  les.  v.  Vnnderen,  1  Dull.  Rep.  67. 

Drposi' ions  of  ancient  persons  admissible  to  prove  pedigree.  Jenkins  v.  Tom  et 
al.  1   rranh  Rep.  123. 

Hearsay  evidence  admissible  to  prove  ancestors  to  hare  been  Indians,  ibid. 

Hearsay  evidence  in«y  be  received  to  prove  relationship,  when  it  coin's  from  a 
deci  ased  relative,  and  made  under  circumstances  to  preclude  a  suspicion  of  bias. 
Chapman  v.  Chapman,  2  Con.  Rep.  347.  Et  vide  Butler  v.  Haskell,  4  Eq.  Rep. 
651. 

So  when  it  was  derived  from  a  person  who  was  then  heir  at  law.  Pancoasfs  les. 
V.  Addison,  1  Hur.  &  Johns.  Rep.  357. 

An  entry  respectins;  ihc  age  of  a  child,  in  a  book  called  a  family  bible,  in  the 
hand  writing  of  the  brother  of  the  child,  and  supported  by  his  oath,  that  by  the  di- 
rection of  his  deceased  father,  he  copied  that,  and  other  «  ntries  respecting  the  ages 
of  the  family,  from  miothe'  book  in  which  the  original  entries  were  made  in  his  fa- 
ther's hand  writing,  without  accou'iting  lor  the  n'n. -production  of  that  book,  is  not 
evidence.     Curtis  et  al.  v   Putton  et  al.  6  Serg.  &  R.  Rep.  135. 

L<  giiimacy  of  a  child  presumed  on  slight  piool,  after  the  lapse  of  thirty  years,  an4 
the  ileath  of  father  and  child.    Johnson  v.  Johnson,  1  Eg.  Rep.  595. 

Death  of  a  person  out  of  the  State  may  be  proved  by  reputation  among  his  rela- 
tions.    Eiving  v.  Savary,  3  Bibb.  Rep.  236. 

Common  reputation  is  traditional  evidence,  to  prove  two  persons  to  be  brothers  of 
the  whole  blnod,  if  bettei  evidence  cannot  be  produced.  Johnson  v.  Howard,  1 
Har.  ^  M'Hen.  Rep.  281. 

A  special  verdict  or  depositions  taken  in  a  case  between  different  partifs,  is  ad- 
missibl  ,  to  prove  pedigree  ;  but  in  case  of  depositions,  the  witnesses  must  be  dead. 
Bouderuu  v.  Montgomery,  C  C.  /Vov.  1821,  M-  S.  Rep.  Les.  of  Buurt  v.  Bay, 
C.  C.  April,  1821,  Ji.  S.  Rep 

Vide  Pegram  v,  Isabell,  2  Hen.  &  Munf.  Rep.  193.  Lovell  v.  Arnold,  2  Munf. 
Rep  167. 

An  ancient  account  in  the  hand  writing  of  the  plaintiff's  ancestor,  found  with  the 
title  papers,  cannot  be  received  in  evidence,  in  support  of  the  title.  Jackson  v. 
Murray,  Antk.  JV.  P.  Cas.  76 

Though  thi  general  rule  is,  that  hearsay  evidence  is  inadmissible,  yet  to  this  rule 
there  are  some  exceptions,  such  as  in  the  case  of  pedigree  and  old  transactions, 
•where  it  is  the  best  evidence  the  nature  of  the  case  will  admit.  Clairbome  v.  Par= 
risk,  2  fVash.  Rep.  146.— Am.  Ed. 

(a:)  Shearer  et  al.  v.  Clay,  1  Lit.  Rep.  260.  Sed  vide  Jackson  ex,  d.  Miner  v. 
B  oneham,  15  Johns.  Rep.  226.-- Am.  Ed. 

E 


g6  '  GEJNEKAL  KULtS 

Ch.  I.       clarations  made  by  a  deceased  tenant,  at  the  time  he  was  pos- 
Hearsay      sessed,  of  whom  he  held,  may  be  given  in   evidence.Cll  rvl     So 

Evidence.  .  .  ,  ,        --  \       \J  / 

entries  by  a  steward,  since  deceased,  of  money  received  by  him 

(i)  Davis  ^.     of  tiifferent  persons  in  satisfaction  for  trespasses  committed  on 

Pearce,  2  T.  the  waste,(2)  or  by  deceased  officers  of  a  township  of  the  receipt 

of  money  from  the  officers  of  another  township,  for  a  proportion 

(2)  Barry  v.  of  the  church  rates,(3)  have  been  deemed  admissible  evidence  to 
4T.  R^ou!  prove  that  the  right  to  the  soil  in  the  one  case,  and  the  liability 
Doe  d.  Web-  of  the  township  paying  to  repair  in  the  other ;  for  in  these  cases 
Thymie  '  ^^^^  entry  was  made  at  a  time  when  no  dispute  existed,  by  per- 
10  East,  206.  sons  who  thereby  charged  themselves  with  money,  and  were  in 

(3)  Stead  T).     fact  acting  against  their  own   interest.     So  an  entry  made  by 
H<atoii,4T.  parish  officers  that  a  particular  pew  was  repaired  by  an  indivi- 
dual as  belonging  to  his  house,  has  been  held  to  be  evidence  for 

(4)  Price  t;.  ^  future  occupier  of  the  house  to  prove  his  right  to  the  pew.(4) 
sCampb  288.  Even  declarations  of  deceased  parishioners  at  a  time  when  no 
f 5^1  Re  In. ''*'*P"^^  existed  as  to  the  boundaries  of  a  parish, (5)  have  been 
habitantsof  received  in  evidence  ;  and  in  one  case,  the  Court  of  Exchequer 
smiarAppen-  received  the  declarations  of  deceased  parishioners  as  to  a  ge- 
dix.  neral  modus  throughout  the  parish  (though  the  relator  held 
(6)  Hflrwood  land,)(6)  but  this  case  stands  by  itself,  and  seeirvs  rather  con- 
w.  Sim.  trary   to   the  general   principle,  which  i-equires  that  the  party 

should  have  no  interest  when  he  makes  the  declaration.     In  the 

case  of  tithes,  where  a  particular  modus  is  set  up,  the  entries  of 

a  former  incumbent  or  his  collector  have  been  in  several  in- 

(7)Legrosse   gtances  admitted  ;(7'i  for  having;  no  interest  bevond  his  own  in- 

f.  Levemoie,  ,  ,  \  i   .      i  i     r  i  ^  •       c 

2Gwni.  527;cumbency,  he  cannot  be  supposed  to  liave  made  raise  entries  tor 
Ld.  Arun-    ^j^g  mere  purpose  of  furuisliing  evidence  for  his  successors.  This 

deU  scase,  1'2  rr  .itjt^  li-tj 

Vin.255,  per  last  authority  was  recognised  by   Lord  Kenyon  ;  but  his  Lord- 

2  Ve\*'43^      ship  said,  that  the  case  of  an  incumbent  was  always  considered 

as  an  excepted  case  ;  and  therefore  entries  made  in  a  book  by 

(8)  Ouiram -J.  the  owner  of  land,  of  money  paid  him  by  a  particular  tenant,(8) 

More  wood,  ■^  ^  J  f  '\  ^ 
5T.  R.  121. — 

(?/)  Ill  an  aciion  ofejectment,  it  was  held,  that  tlio  declarations  of  a  person  in  pos- 
session under  tlic  lessee,  was  prima  facie  evidence  of  the  fact  of  underletting,  ^n- 
dre^ti's  les.  v.  Fleming',  2  Dull.  Rep.  93. 

Viil.    Doe  ex  J.  UiniUy  v.  Rickurby,  5  Esp.  Rep.  4. 

Dtcla.  alions  bv  the  tenants  or  occupiers  of  land,  are  admissible  no  farther  than 
as  lliey  relate  to  ih'-  tenancy  or  possession  ;  they  are  not  evidence  in  respect  of  the 
title,  except  as  th>- declarations  of  a  person  ciniraing  land,  or  through  whom  it  is 
c\Mmei\,  against  Ids  interest.  Jackson  ex.  d.  Youngs  v.  Vredenbnrgh,  1  Joh?is.. 
Sep.  159.  Warnings.  IFarrrn,  ih.  SiO.  Jackwn  ex  d.  Grisivold  v.  Jiard,  4 
Do  '230.  Jackson  ex  d.  Burr  et  al.  y.  Shearma7i,  6  Do.  19.  Bartlet  v .  Delprat 
et  al.  iMasi.  Rep.TO>.  Jackson  ex  d.  M'Donuld  y.  M' Call,  \Q  Johns.  Rep. 
377.    Mchols  V.  Hotchkiss,  2  Day's  Rep.  127.— Am.  Ed. 


OF  EVIDENCE.  <m 

were  held  to  be  no  evidence  after  his  death  to  prove  his  property       ch.  i. 
in  the  land.(2')  Hearsay 

But  in  a  subsequent  case,(l)  where  the  book  of  the  lessee  of      ^'"'"ce. 
an  impropriate  Rectory  was  offered  as  evidence,  to  show  that  he  , 
had  been  in  the  receipt  of  a  certain  description  of  tithe  claimed  wortii  v 
by  the  vicar,  the  Court  of  Exchequer  admitted  such  book,  not- 1}^|''''^'^^''- 
withstanding  the  decision  in  the  above   case,  and  the  observa- 
tion of  Lord  K.ENYON  was  strongly  impressed  upon  them  ;  and 

in  a  former  caseC^)  it  had  been  holden,  that  the   entries  of  the  (2)  Woorinoth 
^  ^  _  V.  L"  (I  Cob- 

steward  of  a  former  proprietor  of  the  land,  of  payments  made  ham,  Bun. 

by  him,  were  evidence  for  the  present  owner  to  prove  a  mo-  ^^^' 
dus.{a) 

Here  a  distinction  should  be  attended  to  between  hearsay  evi- 
dence of  mere/«c/5,  and  of  general  reputation.     In  cases  of  pe- 
digree, declarations  of  deceased  members  of  the  family,  as  to  the 
birth,  marriage  or  death  of  any  member  of  it,  are  admitted,  for 
this  is  general  reputation  ;  but  the  place  of  birth  being  a  parti- 
cular fact,  we  have  before  seen  that  hearsay  evidence   respect- 
ing it  was  rejected.     In  cases  o{  custom  also,  which  can  only  be 
supported  by  a  variety  of  facts  and  by  long  and  uniform  usage, 
the  general  reputation  only  can  be  proved  by  hearsay  evidence, 
a  witness  may  be  permitted  to  state  what  he  has  heard  frbm  per- 
sons since  deceased,  respecting  the  reputation  of  the  right ;  but 
not  to  state  facts  of  the  exercise  of  it  which  the  deceased  jjer- 
sons  said  they  had  seen.(3)     Thus  in  a  case(4)  laid  befora  Mr.  (z').  P^'"*^™^'^ 
Justice  Chambre  at  Shrewsbury,  where  the  question  on  the  re-  E  .  weU,  st. 
cord  was,  whether  a  turnpike  was  erected  within  or  out  of  the  ''  ^"''* 
limits  of  the  town  of   Wem;  that  learned  Judge  permitted  the  (  ■)  lieiand  v. 
plaintiif,  who  contended  that  it  was  within  the  town,  to  give  evi-  sp^Ass  i82(r 
dence  of  general  reputation,  tiiat  the  town  extended  to  a  piece 
called  the  Townend  Piece  ;  and  that  old  people  since  deceased, 
said,  that  such  was  the  boundary  of  the  town  ;  but  he  won!  <  .lot 
suffer  it  to  be  proved  that  those  persons  had  said  thatthi've  were 
formerly  houses  where  none  then  stood,  observing,  that  this  was 
evidence  of  a  particular  fact  and  not  of  general  reputation. (6) 

(z)  Disapproved  of  bv  Wood  B.  in  Perigal  v.  Michokon,  1  Winhtxa.  JRej).  (i3; 
and  by  Price  B.  in  IVoodnoth  v.  Lord  Codham,  2  Gxuill.  Rett.  653- — Am.  Ed. 

(a)  The  vicar's  books  are  evidence,  to  shew  tlial  the  itioii"y  payments  reccivtid 
in  lieu  of  tilhes,  are  loonded  on  and  r;  gulated  by  a  iriterion  not  in  existence  beyond 
legal  memory.     Walter  v.  Uolman,  4  Price's  Excheq.  Rep.  171. 

(6)  In  Connecticut,  hearsay  evidence  from  interested  peisons  as  to  the  bounda- 
ries of  the  laud,  has  been  refused.    Porter  v.  Warner,  2  Root.  Rep.  22. 


m 


GENERAL  RULES 


Ch.  I.  But  though  this  has  been  established  in  cases  of  pedigree  and 

H-.iisay      cU6i(,/ii,  ve;  great  dirt'erence  of  opinion  forinerlj  prevailed  as  to 

the  admissibiility  of  such  evidence  in  questions  of  preHcription 


or  other  rights  merely  private,  some  Judges  being  in  the  habit  of 

See  ihe   seve-  »  J    I  »  «3 

ralc.ises  in  the  receiving  it  when  a  foundation  had  been  laid  by  other  evi- 
Api.fK'Hx  (je-nce,  but  giving  little  vi'eight  to  it  in  their  direction  to  the 
laii)  l)oc<l.  jury  ;  others,  on  the  contrary,  totally  rejecting  it,(c)  It  seems 
Ti'inHm  '^'  "0^  however  to  be  clearly  settled  that  such  evidence  is  not  ad- 
14  East,  323    missible  ;  and  indeed  the  whole  ground  on  which  general  repu- 

W    ks  i  . 

SpHrkf,  -    - 

Rl    -k  Bill  in  Maryhmd,  traditional  evidence  of  what  an  ancestor  of  the  plaintiff,  who 

Lowes  -i  M.  hall  lieen  seised  of  the  lands  in  question  fifty  years  "at  that  time,  did  say  cono'  ning 
&  S.  494.  thos(-  lands,  was  given  in  evi'lc  i.ce.  Jlotve/l's  Ifs.  v.  TiUkn  et  al.  1  Ear.  & M'Hen. 

Hep.  84.     Et  vi'l-  RedcUus''!  les.  v.  .If'  Cuhbiit,  ihul,  368. 

A>  10  tjrxn.ilaries  bung  ;iroved  hy  hearsay,  vide  HoiveWs  Us.  v.  Tilden  et  al. 
ibid.  84.  Jiedding's  les.  v.jVJ'- Ciibbin,  ibid.  368.  Bladeii's  les.  v.Coclcey,iind.  230. 
Long  V.  Pellett,  ibid.  531. 

The  same  rul'-  ()i-e%ails  in  J^orth  Caroli7ia.  Han-is  v.  Poivell,  2Hatfw.  Rep.  349. 

In  Peimnylvania.  ex  parte  depositions  maybe  read  in  evidence  of  boundary.  Les. 
of  Lilly  V.  Kintzmiller,  1  Veates'  Rep.  '28.     Sturgeon  v.  Wangh,  2  Do.  476. 

A  private  surve)  may  be  adniiited  as  evidence  of  boundary  between  those  who 
'  were  parties  to  it,  or  who  claim  under  them  ;  but  not  as  to  strangers.     Lee  v.  Tap- 

scott,  2  IViish.  Rep.  276. 

In  a  fjuesti'in  of  boundary,  depositions  taken  in  the  presence  of  both  parties  before 
any  cause  was  pending,  are  admissible.  Les.  of  Montgomery  v.  Dickey,  2  Yeates^ 
Rep.  212. 

The  declarations  of  a  person  now  dead,  as  to  what  he  heard  his  father  say  respect- 
ing a  corner,  the  father  then  being  the  owner  of  the  land,  are  not  admissible  in  fa- 
vour of  a  person  claiming  under  the  father.  Smith  v.  Walker,  1  Carolina  Law 
Repos.  514. 

The  (1<  claratioiis  of  a  deceased  person  who  surveyed  the  land  in  question,  as  to 
the  boundaries,  are  admissible.  Canfman  v.  Presb.  Congr.  of  Cedar  Spring,  6 
Binn.  Rep.  59. 

But  (be  declarations  of  a  deceased  survey  or,  that  he  had  been  authorised  by  the 
propriftaT-ies  of  the  State  to  sorvey  land  for  .-3.  under  whiuii  plaintiff's  lessee  claim- 
fed,  are  inadmissible  m  establish  plaintiff's  title,  all  hough  the  surveyor's  oflicial  pa- 
pers bad  been  ai;cidenlally  destroyed.  JSonnefs  les.  v.  Devebaugh  et  al.  3  Binn. 
Rep.  175. 

Rejjuted  boundaries  are  often  proved  by  the  testimony  of  aged  witnesses,  and  the 
hearsay  evidence  ol  such  witnesses  has  been  admitted  to  establish  such  lines  in  op- 
position to  the  calls  of  an  ancient  patent.  Conn  et  al.  v.  Penn  et  al.  I  Peters^ 
Rep.  496.     Smith  v.  A'owells,  2  Lit.  Rep.  160.— Am.  Ed. 

(c)  A  legal  prescription  cannot  exist  in  Pennsylvania,  but  the  doctrine  a(  pre- 
sumption prt  vails  in  many  instances.     Young  v.  Collins,  2  JBro-wne's  Rep.  293. 

Wlure  an  easement  had  been  enjoyed  for  sixty  years  and  upwards,  with  every 
apprarance  of  ownership,  and  with  the  apparent  acquiescence  of  those  seised  of  the 
inhei  ilaucc,  it  was  /leld  that  the  jury  ous;lit  to  presume  a  grant.     Ibid.  292. 

In  Massuchu.telts ,  m  the  case  of  Rust  v.  Low  et  al.  6  J\Iass.  Rep  90,  it  was  de- 
cided, that  the  country  had  been  sittled  long  enough  to  allow  of  the  time  necessaiy 
■  to  \)TifVi;  a pre>icriptio7i.     Vide  Goyetty  \.  Bethune,  li  J\Iass.  Rep.  i9. 

Prescription  will  not,  in  any  case,  si've  a  right  to  erect  a  building  on  another's 
land.     Corielyou  v.  Van  Brundt,  2  Johns.  Rep.  357. 

Vide  post  as  lo  prestimption, — Am.  Ed. 


Declarations. 


OF  EVIDENCE.  gg 

fation  is  admitted  supports  this  latter  opinion.  Reputation  in  Ch.  I. 
its  very  nature  can  only  be  the  common  and  general  under-  Dying 
standing  of  a  number  of  persons  :  a  whole  family  may  have  a 
common  reputation  concerning  the  birth,  death,  or  relationship 
of  any  of.  its  members  A  whole  township  may  have  a  common 
reputation  concerning  its  boundaries,  or  the  rights  of  its  indi- 
vidual members,  as  members  of  the  body ;  but  there  can  be  no 
general  or  common  reputation  as  to  the  fights  of* an  individual 
or  the  appurtenances  of  a  particular  estate.  In  this  case,  there- 
fore, it  becomes  mere  hearsay  and  not  general  reputation,  and 
is  inadmissible  on  the  same  principle  as  hearsay  ot  particular 
facts  in  cases  of  public  right.  This  distinction  will  not  militate 
against  those  cases  in  which  the  entries  of  deceased  persons, 
charging  thetnselves  with  sums  of  money,  were  received  as  evi- 
dence ;  for  they,  as  before  observed,  were  not  received  merely  as 
hearsay  of  a  particular  fact,  but  as  declarations  made  by  persons 
who,  by  the  very  act  of  making  them,  furnished  evidence  against 
themselves. 

Indeed,  in  many  other  cases,  the  law  receives  the  memorandum 
in  writing,  made  at  the  time  by  a  person  since  deceased,  in  the 
ordinary  way  of  his  business,  and  which  is  corroborated  by  other 
circumstances  as  evidence  of  the  fact  it  records,  (rf)  *     And  in 


(f/)  A  book  of  accounts  in  the  liand  writing  of,  and  kept  by  a  cUrk  who  is  since 
dead,  is  proper  evidence,  upon  these  facts  being  proved.  Lewis  v-  JSTorton,  1  fVash. 
Rep.  7^.  Vide  ICemiedi/ V.  Ftiirmnn,\  Ilay-o.  Hep.  i5S.  Feimo  \.  Rogers  et  al, 
1  Bay's  Rep.  480. 

An  enti'v  made  by  an  adniinistrafor  since  dead,  w.is,  with,  nih'-r  circumstances, 
permitted  to  be  given  in  evidence.    Brotvn  v.  Broion,  2  Wash.  Rep.  151. 

In  JM-  Coul  V.  Le  Kamp''sadmx.  2  Wheat.  Rep.  Ill,  a  witness swoie,  that  the  ar- 
ticles of  merchandise  in  thi'  account  annexed  to  his  deposition,  wer-e  soldbv  plaintiffto 
defendant,  and  charged  in  the  day  book  by  the  deponent  and  another  peisoTi  since 
dead,  and  that  deponent  delivered  them,  and  referred  to  the  original  entries  in  the 
day  book,  held  snfficient  evidence  of  sale  and  delivery. 

In  a  suit  in  Chancery,  bet-ween  partners,  the  partnership  books  are  evidence,  and 
vouchers  are  unnecessary.  Fletcher  \.  Pollard,  2  H.  &  J\funf.  544.  Brickhousc 
V.  Hunter  et  al.  4  Do.  .363.— Am.  Ed. 

•  Where  it  appeared  that  the  plaintiff's  draymen  (he  being  a  brewer)  were  used  to 
come  every  iiight  to  the  clerk  of  the  br-whouse,  and  give  an  account  of  the  beer 
delivered  out,  which  he  set  down  in  a  bonk,  and  the  draymen  signed  it;  this,  with 
proof  of  the  dra\  man's  band  writing,  was  held  to  be  eiidence  of  the  delivery  after 
his  death.  (Lord  Torringto7i's  Case,  Salk.  285.  Pitmanv.  JMaddox,'ibid.  fi90.) 
But  in  another  case,  where  the  plaintiff  only  proved  the  servant's  hand  writing.  Lord 
Ch.  J.  Raymond  held  it  insufficient,  saying,  that  it  differed  from  Lord  Turrington's 
Case,  because  there  the  witness  saw  the  draym-n  sign  the  book  every  night.  (  Clerk 
V.  Bedford,  Mich.  5  Geo.  2.  B-  M  P.  282  )  It  is  observable  that  the  Stat.  7.  Jac. 
C.  12,  enacts,  that  the  shop  book  of  a  tradesman  shall  not  be  evidence  altera  year, 
whereas  it  is  not  at  any  time  of  itself  evidence.    Lord  Hardwicke  (2  Fes.  43,) 


30  GENERAL  RULES 

Ch.i.      prosecutions  for  murder  where  the  deceased,  while  in  the  de- 
Dying       Glared  apprehension  of  death,  or  in  such  imminent  danger  of  it 

Declarations.  ° 

observed,  ihat  at  the  time  this  x\ct  of  Parliament  was  made,  there  was  an  opinion 
growing  up  that  after  a  certain  length  of  time,  a  man's  own  shop  books  should  be 
evidt'iice  for  him  after  a  year;  to  prevent  which  was  that  Act  made,  as  he  had  been 
informed  by  Lord  Raymond  ifpon  consulting  hira.  It  was  to  take  away  that  opinion 
that  after  the  ye^yit  might  be  evidence. 

So  an  entry  made  by  a  banker's  clerk,  of  his  haying  paid  a  check,  was  not  per- 
mitted to  be  read  as  evidence  of  such  fact,  though  ihe  clerk  was  resident  in  a  for- 
eign country.  Cooper  V.  jyiarsdeiijSitungs  after  East,  Term.  1793,  M.  S,  1  Esp. 
J\r.  P.  Cas   1,S.  C. 

But  in  an  action  for  a  watch  delivered  to  a  watchmaker  to  be  cleaned,  the  servant 
having  sworn  that  he  saw  his  master  deliver  it  to  a  third  person  by  the  owner's  or- 
ders, and  such  third  person  having  sworn  that  he  never  received  it.  Lord  Kkkyon 
permitted  the  master's  day  book,  containing  an  entry  made  by  li^nselfyX  the  time, 
in  the  or'linary  course  of  business,  to  be  read  in  confirmation  of  the  servant's  testi- 
mony. Di^by  V.  Stedman,  \  F.fsp.  J\'.  P.  Cas.  329. 

Notic.  having  been  givi-n  to  produce  a  letter  of  a  particular  date,  and  the  partj 
having  ackuowledgetl  the  receipt  of  it,  but  refusing  to  produce  it,  Lord  Eilenbg- 
HOL'GU  permitted  a  copy  made  by  a  dec  ased  clerk  in  a  regular  letter  book,  to  be 
read  as  evidence  of  its  contents.  Pritt  v.  Faircloiigh,  3  Cump.  365. 

Where  an  estate  h;)d  been  enjoyerl  many  years  under  a  recovery  suffered  by  a  re- 
mainder man,  and  no  surrender  of  the  life  estate  could  be  found,  the  entry  in  the 
attorney's  bill  book,  made  at  the  time,  containing  charges  for  drawing  and  engross- 
ing the  suriender  (which  bill  had  been  paid)  -was,  after  the  death  of  the  attornej, 
received  as  evidence  of  the  s\irrender.  Woi^en  d.  Webb  v.  Gran-ille,  2  Stra.  1 129. 
So  where  a  man  midv  Ife  made  ar^  entry  in  his  b'lok  of  having  delivered  a  woman 
on  a  certain  day,  referring  to  his  ledgei-  in  which  he, had  made  a  charge  for  his  at- 
tendance, which  was  marked  as  paid  ;  such  entry  was  received  in  evidence  upon  an 
issue  as  to  the  age  of  the  child  at  the  time  of  his  afterwards  suffering  a  recovery. 
nigbam  v.  Pidgeway ,  10  East,  109.  And  in  a  very  late  case  an  attorney's  book 
chargins;  for  engrossing  and  registering  a  lease  on  a  particular  day,  which  was  after 
its  date,  was  received  as  evidence  to  shew  the  exact  day  of  its  execution.  Doe  d, 
Peea  v.  Pobson,  15  East,  32. 

Upon  an  i'-sne  out  cf  Chancery,  to  try  whether  eight  parcels  of  Hudson's  Say 
Stock,  bought  in  the  name  of  Mr.  Ldke,  were  in  trust  for  Sir  Stephen  Evavs  ;  his 
assignees  (ihe  plaintiffs)  shewed  first,  that  there  was  no  entry  in  the  books  of  Mr. 
Lake,  relating  to  ibis  transaction.  Secondly,  six  of  the  receipts  were  in  the  hands 
of  Sir  Stephen  Evans,  and  there  was  a  reference  on  the  back  of  them  by  Jeremy 
Thomas,  (Sir  Stephen's  book  keeper,  to  the  book  B.  B.  of  Sir  Stephen  ETa7is.) 
Thirdly,  Jeremy  Thomas  was  proved  to  be  dead,  and  upon  this  the  Court  of  King's 
Bench,  on  a  trial  at  bar,  admitted  the  book  referred  to,  in  which  was  an  entrj  of 
payment  of  the  motu  y,  not  only  as  to  Ihe  six,  but  likewise  as  to  the  other  two,  in  the 
hands  of  Sir  Bihy  Lake,  tlie  son  of  Mr.  Lake,  Bui.  JV.  P.  282. 

AnBlher  case,  similar  to  the  above,  was  Sma>tle  v.  TJ^lliams,  where  the  question 
being  whether  mortgage  money  was  really  paid,  a  scrivener's  book  of  accounts  was 
after  hisdeath  received  as  evidence  of  the  payment.  Vide  Btd.  JV.  P.  283.  This 
cise  is  reported  in  SciUc.  245.  280,  but  the  point  is  not  there  mentioned.  It  must 
be  understood,  that  in  this,  as  in  the  other  cases,  some  circumstances  were  proved 
to  lay  a  foundation  for  this  book  being  received. t 

•j"  In  Connectiait,  in  an  action  for  a  book  debt,  nnder  ihe  Statute,  books  of  account 
are  admitted  in  evidence.  Vide  S-cviffs  Syst.  of  Evid.  81.  Bradley  v.  Goodyear, 
1  Day.  Pep.  104.  Levensrworth  v.  Phelps,  Kirb.  Rep.  71. 


OF  EVIDENCE,  g| 

as  must  necessarily  have  raised  that  apprehension  in  liis  mind,  ch.  I. 
has  made  a  relation  of  the  manner  in  which  the  offence  was  com-  Dying 
mitted,  such  relation  has  been  received  as  evidence  against  the  ____J2^°^* 

— "^  ~"  ~~~  Woo<l cock's 

The  books  of  account  of  a  party  in  JVerv  York,  (from  the  case,  original  books  are  *^'a^^>  Leat^li, 
intended)   are  not  evidence  in  case  of  a  single  chargr,  nor  where  tiicre  are  several 
char!j;es,  unless  the  party  proves  that  he  had  no  clerk,  that  some  of  liie  articles  were 
deli?ered,  and  that  theaccoimts  arc  fair  and  honest,   Vosbargh  v.  Tliaijer ,  12  Johns. 
Bep.iSl. 

In  an  action  by  an  administrator  for  wo7J6'?/ /e;ji,  the  book  of  account  containing 
the  ©riginal  entries  in  the  hand  writing  of  the  intestate,  is  not  evidence  for  the  plain- 
tiff.   Case  V,  Potter,  8  Johns.  Hep.  211. 

Entries  made  by  one  partner  in  the  books  of  accounts  during  the  partnership,  are 
»dmissible  against  both.    Walden  et  al.  v.  Sherburiie  et  al.  15  Johns.  Rep.  409. 

An  entry  made  by  a  clerk,  of  the  protest  of  a  promissory  note,  cannot  be  received  in 
evidence,  though  such  clerk  be  abroad.  Cummitis  v.  Fisher,  I  Jlnth.  JV.  P.  Cas.  2. 

In  .A'ew  Jersey,  it  has  been  decifleil,  that  a  book  of  accounts  ought  not  to  be  re- 
ceived in  evidence  where  no  price  is  fixed  to  the  items  charged.  1  South.  Rep.  370. 

Charges  of  cash  paid,  advanced,  or  lent,  written  on  one  of  the  last  leaves  of  a 
book,  detached  from  the  daily  entries  and  accounts,  by  sundry  intervening  blank 
leaves,  and  dated  dirt-ing  the  time  of  such  entries  and  accounts,  are  not  evidence  to 
go  the  jury.    Wilson  v.  Wilson,  1  Halst.  Rep.  95, 

Queve,  Whether  books  of  accounts  are  evidence  of  cash  lent.  ibid. 

In  Pennsylvania,  shop  books  proved  by  the  oath  of  the  plaintiff  are  admitted  in 
evidence  to  charge  the  original  debtor.     Pulteney  et  al.  v.  Ross,  1  Dull.  Rep.  239. 

And  where  the  action  is  brought  by  the  assignees  and  the  book  is  fn  thi  n-  posses- 
sion, parol  evidence  to  prove  the  sale  by  the  bankrupt  will  not  be  admitted,  until 
the  non-production  of  the  book  is  accounted  for,  Xellij  v,  Iloldslt-p,  1  Rrowne's 
Rep.  36. 

Where  the  book  is  in  the  hand  writing  of  the  clerk,  they  must  be  pi-oved  by  him, 
©r  proof  that  he  is  dead  or  out  of  the  power  of  the  Court.  Sterret  v.  Bull,  1  BinU' 
Rep.  234. 

A  day  book  \i  prima  fade  evidence  of  the  prices,  as  well  as  the  sale  and  delivery 
ef  goods,  ^^ito"  of  money  lent  or  cash  paid,  Ducoigii  v.  Schreppel,  I  Yeates''  Rep, 
347. 

The  law  fixes  no  particular  time  at  which  the  entry  in  a  tradestnan's  books  should 
be  made  ;  if  at  or  near  the  time,  it  is  sufficient.  Ctirren  v.  Crawford,  4  Serg.  £if 
R.  Rep.  5.     Vide  Vance  v.  Feanss,  1  Yeates'  Rep.  321,  S.  C.  2  Ball.  Rep.  217. 

A  book  kept  b»  a  forge  master  for  the  purpose  of  settling  with  his  workmen,  in 
•which  is  entered  their  names,  the  quantity  of  iron  delivered,  the  date,  sometimes 
the  price,  such  a  book  of  oi-iginal  entries  is  evidence  against  the  purchaser  of  the  iron, 
although  it  contain  the  names  of  the  purchasers,  Rogers  v.  Old,  5  Serg.  &  R, 
Rep.  401 . 

A  l>f>ok  of  entries,  in  the  foriti  of  a  ledger,  was  allowed  to  be  read,  the  Court 
leaving  it  to  the  jury  to  determine  on  the  face  of  it,  whether  it  was  an  original  or  a 
transcript,  and  in  the  latter  chsc,  directing  them  to  p;iy  no  regard  to  it,  Rodman 
V,  Hoofy's  exrs.  1  Dall.  Rep.  85. 

The  book  "f  original  eijtries,  with  the  oath  of  the  party,  is  the  best  evidence  of 
goods  sold  and  delivered  or  work  done,  and  must  be  accounted  for,  Kelly  assignef, 
a^  Gullen  v.  Holdship,  1  Bfoiv}u-''s  Rep  36. 

A  bi.ik,  in  wliich  entries  are  transcribed  from  a  slate,  is  not  evidence,  O^den  v- 
JSIiUer's  exrs  1  Browne's  Rep.  147. 

The  plaintiff's  book  of  entries  is  not  evidence  to  prove  work  done  for  the  defen- 
dant by  the  servant  of  plaintiff.     Wright  v.  Sharp,  1  Browne's  Rep.  344, 


3g  GENERAL  RULES 

Ch.  L  prisoner,  though  the  person  making  it  was  not  formally  sworn; 

Dving  for,  as  was  observed  by  Lord  C.  B.  Eyre  in  a  case  of  this  kind, 

""  '^when  the  party  is  at  the  point  of  death,  and  when  every  hope 


lb.  567. 


But  it  is  good  evidence  to  prove  a  sale  and  delivtrv  of  lime,  and  it  is  not  ne'-'-ssa- 
ry  to  produce  the  carters  by  whom  it  was  delivered.  Curren  v.  Crawford,  4  Serg; 
&  It.  nejj.  3. 

Qitere.  Whether  the  books  of  a  defendant  are  evidence  to  determine  a  col'aif-ral 
questinii,  as  ihat  a  third  person  was  defendant's  debtor.  Dubitatur.  JVTiffiiny. 
Bingham,  I  Ball.  Rep.  276. 

An  entry  in  iltfendant's  daybook,  that  he  had  received  goods  to  sell  on  commission 
■was  riilei)  in  be  inadmissible  (-vidence  in  an  aciion  for  the  price  of  the  goods 
Baisch  v.  Hof.  1  Teates'  Rep.  198. 

The  daybook  uf  a"  agent  and  consignee  was  ruled  to  be  evidence  to  prove  his  dis- 
bursements in  the  outfit  of  a  vessel  in  a  foreign  port,  in  an  action  against  the  owners 
of  a  vessel.     Seagrove  v.  Redmnn  et  al.  2  Yeates^  Rep.  254.     4  Dall.  Rep.  153. 

Wherein  an  action  against  ^.,  a  partneiship  between  ^.  and  £.  is  sworn  toby 
a  clerk  of  one  of  the  partners,  the  books  of  B.  may  bi-  given  in  evidence,  to  fortify 
or  discredit  the  testimony  of  the  witness.  JVloyes  et  al.  v.  Brumaux.  3  Feates' 
Rep.  30. 

In  an  action  for  the  price  of  goods,  to  prove  that  they  were  bought  of  a  third  per- 
son, and  not  the  plainlifi",  the  clerk  cannot  prove  that  he  made  an  entry  ot  the  sale 
in  his  books,  but  the>  must  be  produced.  Keely  v.  Ord  et  al.  1  Dall.  Rep.  3\0. 
Vide  Sterrett  v.  Bull,  I  Binn.  Rep.  234. 

An  entry  made  nineteen  years  before  in  the  book  of  the  defendant's  testator,  that 
a  promissory  note  of  twenty  -three  years'  standing  was  paid,  was  read  to  support  the 
presumption  of  payment.  But  this  case  was  not  considered  as  a  precedent.  Rod' 
man  v.  Hoop^s  fus.  1  Dall.  Rep.  35. 

A  book  kept  by  an  ag  nt,  and  containing  copies  of  invoices,  is  not  evidence  of  the 
sale  and  delivery  of" goods.    Cooper  v.  JVEorrell,  4  Feates^  Rep  341. 

Abstractsfrom  the  books  of  merchants  abroad,  with  the  oath  of  the  clerk,  are  evi. 
dence  of  tlie  shipment  of  goods,  but  they  must  be  supported  by  other  proof.  Bell 
et  al.  V.  Keely,  2  Feates'  Rep.  255. 

When  books  are  produced  on  notice,  and  entries  are  read  in  evidence  by  the 
party  calling  for  them,  the  party  producing  them  may  read  other  entries  necessarily 
connected  with  the  former  entries,  if  made  prior  to  the  commencement  of  the  suit. 
Withers  v.  Gillespey,  7  Serg.  ^  R.  Rep.  10. 

It  seems  the  rule  is  different  if  the  party  inspect  the  books  with  a  view  to  their 
being  read.   ibid. 

The  books  of  accounts  and  oath  of  the  party,  are  in  no  case  admissible  to  char^  a 
person  with  goods  delivered,  by  order,  to  a  third  person,  unless  the  order  be  other- 
wise proved.  Kerr  et  Co.  v.  Love,  1   Wash.  Rep.  172. 

In  J^Torth  Carolina,  in  an  action  tor  gooils  sold,  where  the  hand  writing  of  the 
clerk  who  made  the  entries,  was  proved,  they  cannot  be  admitted  in  evidence,  al- 
though he  was  a!)sent  from  the  State.  Kennedy  v.  Fairman,  1  Hayw.  Rep.  458. 
ff'hitjield  V.  Walk,  2  Do.  24. 

In  South  Carolina,  the  books  of  a  brickmaker  or  other  mechanic,  as  well  hs  of  a 
merchant,  are  admissible  to  prove  the  performance  of  a  particular  job  of  work  in  the 
course  of  his  trade,  and  of  articles  tuinisheif.  Petrie  v.  Lynch,  1  JV*o«  &  M'  Cord'a 
Rep.  131.  Tit  vide  Thomas  v.  Dyott,  ibid.  187% 

But  not  to  prove  or  contradict  a  special  contract.  Prichard  r.  M  Owen,  ibid. 
131,  n. 

Nor  to  prove  a  verbal  order  of  the  defendant  to  let  his  ward  hare  clothes.  Darby 
.  V.  Deas,  1  JYott  &  M  Cord's  Rep.  437. 


OF  EVIDENCE. 


33 


of  this  world  is  gone,  when  every  motive  to  falsehood  is  si-     chap.  I. 
lenced,  and  the  mind  is  induced  by  the  most  powerful  considera-       i>>iiig 
tions  to  speak  the  truth ;  a  situation  so  solemn,  and  so  awful,  is    ""  *''-'"°'^'' 
considered  by  the  law  as  creating  an   obligation   equal  to  that 
which  is  imposed  by  a  positive  oath  administered  in  a  Court  of 
Justice.'      But  in  cases  where  the  party  making  the  declaration 
is  so  infasnous  as  not  to  be  competent  to  give  evidence  if  sworn, 
the   mere  circumstance  of  his  approaching  death  does  not  give^'""".'"''^?'''* 
credit  to  his  relation;  and  therefore  the  dying  declaration  of  a       '    " 
thief  at  the  gallows  is  not  received  as  any  evidence  whatever.(e) 

Entries  in  a  merchant's  books,  must  be  proved  by  the  clerk  who  made  them,  if 
In  the  Slate,  and  the  reach  of"  the  process  of  the  Court,  l^imno  v.  Rogers,  1  Bay's 
Hep.  480. 

Michanics' and  tradesmens' books,  are  good  evidence  to  prove  their  accounis,  and 
should  be  put  on  tlie  same  footing  as  those  of  shopkeepers.  Lamb  v.  Hart,  2  Do. 
362. 

Original  entries  in  a  merchant's  or  shopman's  books, are  good  evidence  to  prove  the 
debt,  and  are  prima  facie  evidence  of  a  ilelivery.  Foster  v.  Sinkler,  1  Bay's  Rep. 
45  Skide  V.  Teasdale,  2  Do.  172.  Vnle  Speiicer  v  Sanders,  1  Do.  119.  Tunno  v. 
Rogers,  ibid  480     Lamb  v.  Hart,  2  Do.  362. 

Km.  ei. tries  in  the  from  l.-af,  and  not  in  the  regular  account  of  charges,  not  pro- 
per to  go  tht-  jury      Lynch  v.  JVI'Hugo,  I  Bay's  Rep.  33. 

(^Udre  Whfther  in  South  Carolina  the  books  of  a  seine  maker  are  evidence. 
Story  V.  Adin.  of  Penin.    2  Rep.  Const.  Ct.  S.  Car.  220. 

The  bo' ks  ol  a  inil.er  are  exidence.     Gordon  v,  Arnold,  I  J\l'  Cord's  Rep.  517. 

In  Cogswell  dxr^x.  \.  Doliver,  2  JUass  Rep.  217,  ir  was  AfW,  that  shop  books 
verified  by  th^  oath  of  the  party  ,  though  not  kept  rtgularly  in  the  manner  of  a  day 
book,  may  be  given  in  evidence  to  the  jury,  who  are  to  judgn  of  their  credit  5  but 
■where  the  itetns  have  been  transferred  to  the  ledger,  it  must  be  produced  to  support 
the  day  iiook.  Prince  v.  Swett,  ibid.  569.  Sed  vide  Prince  adm.  v.  Smith,  4  Do. 
455. 

But  in  Faxon  v.  HoUis,  13  Do.  427,  a  tradesman's  books  of  accounts,  verified  by 
his  own  oath,  were  received  in  evidence ,  although  kept  in  the  ledgi.r  form,  ai«d  al- 
though it  appeared,  from  his  own  shewing,  thni  he  first  made  the  charges  upon  a 
slate,  and  alter  transferring  them  to  his  own  book,  rubbed  them  off — Am   Ed. 

(e)  Declarations  made  the  day  after  receiving  the  wound,  and  six  or  si-ven  weeks 
before  the  death  of  the  deceased,  were  held  inadmissible.  State  v.  Moody,  2Hay-u). 
Sep.  31. 

The  declarations  in  extremis,  of  a  person  who,  if  living,  would  be  a  competent 
witness,  are  inadmissible  evidence,  eith  i-  in  a  cmY action  or  criminal  prosecution  ; 
with  the  only  exception  of  cases  oi  homicide,  when  the  declMration  of  the  deceased, 
after  the  niMi-tal  blow  as  to  the  fact  of  murder,  is  admitted.  Wilson  v.  Boeram,  15 
Johns.  Rep.  286. 

Evidence  of  the  declarations  of  the  testator,  on  his  death-bed,  that  the  will  had 
been  obtained  from  liiiii  by  duresse,  is  inadmissible  to  defeat  it.  Jackson  ex.  d.  Coe 
et  at.  ><.Kniffen,  2  Johns.  Rep.  31, 

Testiuii>n\  as  to  the  "leclaraiious  of  a  deceased  person,  unless  made  upon  oath,  or 
in  extremis,  when  he  came  to  a  violent  end,  is  inadmissible.  Gray  v.  Goodrich,  7 
Johns  ReJ>.  95. 

Declamtions  in  extremis,  are  inadmissible  in  civil  cases.  WHsqu  s.  Boeram,  Antk. 
JV.PriuH.  176,  e<n.  a. 
F 


34  GENERAL  RULES 

Chap.  I.         What  a  party  has  himself  been  heard  to  say,  does  not  fall 

■^|J"'p^'^"*°' within  the  objection  as  to  hearsay  evidence      Any  thing,  there- 

_  fore,  which  he  admits,  whether  he  is  suing  in  his  own  right,  or 

rnBaiKiinaB  "'erely  as  trustee  for  another,  or  which  another(l)  asserts  in  his 

V.  Raiieiiius,  presence,  and  he  does  not  contradict,  is  received  as  evidence 

■    ^^'    ''■  against  him.     The  like  evidence  may  be  given  of  any  admission 

made  by  a  person  on  whose  behalf  an  action  is  brought,  as  where 

a  bond  is  conditioned  to  pay  a  sum  of  money  to  d.  though  .4.  is 

no  party  to  the  record,  yet  any  acknowledgment  made  by  him 

(2) Hansons,  respecting  the  matter  in  dispute  will  be  evidence.(2)  *  But  when 

Paiktr,  1        s,uch  admission  is  offered  in   evidence  against  a  man,  the  whole 

\*   )  -SO' I     i^J/ 

Sn.iiii  v.  Ly-  of  his  account  must  he  taken  together  ;(3)  and  therefore  if  he 
465"^  ^^'^''''"  admit  certain  sums  of  money  to  be  due  to  the  plaintiff'  on  a  par- 
ticular transaction,  but  at  the  same  time  assert  (or  in  a  written 
Biackbunie^s^'^^o""*  set  down)  that  such  sums  were  liable  to  certain  deduc- 
Taunt.  245.    tions,  as  where  an  agent  admits  having  received  a  certain  sum 
of  money  for  timber  sold,  but  charges  another  sum  for  the  de- 
murrage  of  the  ship  which  brought  the  timber,  his  admission 
shall  be  taken  against  him  only  for  the  balance  ;  and  the  plaintiff", 
if  he  mean  to   dispute  the  propriety  of  the  countercharge,  will 
be  under  the  necessity  of  calling  witnesses  on  his  part  to  dispute 

But  iieclaraiioi^  by  ai.  attisting  witness  to  a  forged  instrument  has  been  received 
Avesonv.  Kinnurd^  6  East.  Rep.  195.     3  Burr  Rep.  1244. 

But  evidence  of  the  dcclai'auons  of  one  who  has  given  a  deed  with  warranty,  can- 
not l)f  received  to  support  the  title  deduced  from  such  person,  though  made  inarti- 
culo  mortis,  but  such  declarations  may  be  received  in  evidence,  to  shew  in  whatcha- 
racti-i' and  with  wiiat  inteiit,  such  pt-rson  entered  and  held  possession  ot"  the  land, 
Jacksb7i  ex  d.  Youngs  v.  Vredenbergs,  I  Johns.  Rep.  159. 

A  confession  of  a  prisoner,  put  in  writing  from  his  mouth  by  a  magistrate,  though 
N  not  signed  by  the  prisoner,  was  admitted  On  a  trial  for  murder.    Pemisylvuma  r. 

Stoop!',  Jddis.  Rep.  383. 

On  an  iiidictnicnt  for  murder  on  the  high  seas,  by  means  of  poison,  the  Court  ad- 
mitte<l  evidence  of  a  cimversation,  in  which  the  difen:lant,  after  the  murder  had  been 
committed,  informed  the  witness  of  a  contemplated  plan  to  administer  poison  to  the 
crew  ol  the  vessel,  adding,  zAa<  he  had  experience  of  it  ;  the  evidence  being  ad- 
mittf-d  to  prove  an  aeknt)wiedgmeni,  tlwt  the  witness  had  administered  poison  pre- 
viously, and  the  acknowledgment  that  '"  he  had  experience  of  it,"  not  being  intelli* 
gible  without  connecting  it  with  the  rest  of  the  conversation.  U.  States  v.  Tardy, 
1  Peters'  Rep.  4.18  . — Am.  Ed. 

•  In  Rex  v.  Inhabitants  of  Woburn,  10  East,  395,  the  Court  of  King's  Bench 
held,  that  n  I'Mted  inhMbitant  of  a  parish,  between  which  and  another  pirish  an  ap- 
peal w;is  pending,  was  so  far  to  be  considered  as  a  party  to  the  appeal  as  not  to  be 
conipellab.eto  g^-t-  the  evidence  under  the  Stat.  46  Geo.  3  c.  3/,  (vide  post,  c.  S,s. 
5,)  and  considering  him  as  such  partv,  ihey,  iii  two  subsequent  cases,  admitted  the 
decl;>rHtiniis  of  such  rated  inhabitant  as  evidence  against  the  parish  wherein  he  was 
raifil,  though  he  was  not  named  as  a  p;iity  in  the  appeal.  Rex  v.  Inhabitants 
ofRardxvich,  II  E<ist,  589.  Rex  v.  Inhabitants  of  JVMiley  Lower,  1  J\L  i^  S.  636, 


OF  EVIDENCE.  3^ 

it.  So  if  he(l)  admit  the  receipt  of  a  sum  of  money,  but  say  at  the       ch.  I. 
same  time  that  he  had  paid  it,  this  is  no  proof  of  a  debt.(/)     No  Ad'nission  of 
evidence  is  received  of  what  is  said  by  the  wife  of  the  party,  or  ,«•  Hiorm^"*' 
by  any  other  person,  in   his  absence,  unless  in   cases   where  it  _ 

appears  that  they  were  employed  or  entrusted   by  him  in  the(i)  1-2  Vm. 

Ab.(A.b.)23. 

(./")  Confessions  are  a  «Iaiigprous  kiii'l  of  evidence,  and  ought  to  be  received  with 
great  caution.     J\li/':rs  v    J]a/ce7- ei  al.  Hardin's  Rep.  5 i'J. 

Ill  no  case  can  the  d<-claraii()ns  of  a  supposed  grnntor,  or  party  in  an  instrument, 
who  may  be  considered  as  intt-restcd  at  the  lim  •  to  d>  dare  in  the  particular  manner 
testified  to,  be  admitted  for  any  purpose  wiiatever.  Burtlet  v.  Delprut  et  al.  4 
Mass.  Rep.  702.     Clarke  \.  IVaite,  12  Do.  439. 

So  the  declarations  ot  the  grantor  of  a  dei-d  are  inadmissible  in  evidence  to  prove 
the  cleed  fraudulent.     Alexander  v.  Gould,  1  Do.  165. 

In  a  libel  for  divorce  for  adultery,  the  confessions  of  the  lespondent,  nncorrnbo- 
rated  by  other  circumstances  are  not  admissible  in  evidence  to  (rove  tlu  adultery, 
Baxster  v,  Baxster,  1  Mass.  Rep.  346.  Holland  v.  Holland,  2  Do.  154.  Et  vide 
Doe  V.  Roe,  1  .Johns.  Cas.  25. 

In  an  action  on  a  note  of  hand,  a  letter  written  by  the  plaintiff,  acknowledging  a 
certain  parol  ag  eement  on  his  part,  at  the  time  of  giving  it,  was  admitted  to  reduce 
the  damages.     Lewis  \.  Gray,  1  J[Iass.  Ref).  297. 

The  confessions  of  oni  interested  in  tlu  event  of  a  suit,  but  not  a  party,  cannot  be 
given  in  evid'  nco.  JVoodniJfy.  Whittlesey,  Kirb.  Rep.  62.  Hamlin  v.  Fitch, ibid. 
174.     Stotys  V.  Whitmore,  ibid.  203. 

The  exami  iati"n  of  a  clef-ndw  l  on  oath  is  evidence  against  him,  hut  the  whole 
must  bf-  taken  together      Benedict  adm   v.  JVicholls,  1  Roofs  Ri-p.  434. 

C*.  What  a  defendant  in  a  public  prosecution  against  him  confessed,  -tir)  be  given'X 
ill  evidence  in  an  action  of  assault  and  battery,  for  the  same  cause.  F.no  v.  Broiun,J 
ibid.  520.  '  ^ 

Wh-it  a  party  to  a  cause  had  said  at  one  time,  cannot  be  given  in  evidence  bv  him- 
self, to  explain  what  he  hns  said  at  a  former  time,  which  the  other  party  has  given 
in  evidence     Blight  v.  Ashley  et  al.  \ Peters'  Rep.  15. 

Di  durations  of  the  part\  are  evideiic-  as-umst  hin,  though  made  Mfter  the  cora- 
menc  inent  of  the  suit.   Morrises  les  w  Vunderen,\  D'dl.  Refj.  65. 

The  declarations  of  a  \)ersot.  undei  whom  a  p^^tv  to  a  suit  claims,  are  evidence 
against  him.  Bassler  v   JViesley,  2  .Serg-   &  R   Rep.  S.Si. 

Bill  the  d  clarat  ons  of  an  int-  -tale,  thitt  the  contiHct  was  wiihoul  f  aud,  are  not 
conclusive  against  his  admi'dst-aloi  in  an  action  on  the  coniiact.  Duncanv  j\l- Cul- 
loug!: .  4  Serg  &  R   Rep.  4S3 

Where,  in  an  acti'ii.  io  wlijch  the  vali'ity  of  a  will  was  in  question,  a  witn-ss  litd 
testifie  I  to  a  confidential  interonts  between  Inns-  If  ami  the  t'-statop.  it  >v;s  h-'d, 
thi't  •  vidc-iice  of  d< derations  of  thi  test^vinr  to  anolh -r  wit- ess,  lending  ir>  shew  ti'at 
he  ci''ild  not  huve  been  on  roi.fi  !•  nl  al  t  rms  with  the  first  witness,  was  admissible. 
laglitnerv.  Wike  4  S't^-.  y  R   Ret'.  203. 

The  cotiducl  ;tnd  i!i  dmations  of  the  gr:)i  tor,  resp.-ctinc:  the  estate  coi.veved,  and 
tet'ditig  to  prove  a  fiaudulen'  intei  tiou  on  his  part,  b- for-  the  conveyance,  is  evi- 
dence  tor  the  jury ,  upon  an  iin|nify  into  ii<  vdidity,  iiy  h  cr^  ditor  O'  subveij"  it  nnv- 
cbanr  who  Mllege.s  ii  to  he  fraudulent.    B.  idges  \.  K^:  lestov,   li  JUass.'  Hep  '.>45, 

Th'   confessions  of  a  p4rtv,  volnmardy  mad.    to  members  of  the  sanv  ch, 

maybe  a:iven  in  -vidence  on  Ins  'nd  lor  the  crime  or  misdemeanor  so  CiiniTS-d  by 
hi:ii.   Common-wealth  V.  Drake.  )SM  is.  Rep.  161. 

Til  coiifessioii  ot  .1  parly  that  tie  si.;ned  :<ii  m'^trnni  nt.  's  siiffic'ent  l■^id■nce, 
withnni  cidlin-i;  th    subscribing  witu  ss     }fallv.  Ph'.pa,    ■  .TnhnS.  AV/v  i'  I 

The  whole  declaration  of  a  party  must  be  taken  together.    Carver  v.  Tracy, 


36  GENERAL  RULES 

Ch.  I.  management  of  a  business.  Thus(l)  an  acknowledgment  of  a  fact 
Admission  of  by  tjjjj  attorney  in  the  cause  is  no  evidence  of  that  fact,  unless 
ami  attoriie) .'  made  with  the  express  view  of  obviating  the  necessity  of  proving 
■  it  on  the  trial ;  and  even  the  wife's  acknowledgment  of  her  hav- 

(1)  Young  p.  iiig  received  wages,  which  she  had    personally  earned,  was  in 
Ca'rM.b.  140    ""®  case,(2)  held  to  be  no  evidence  against  her  husband,  in  an 
action  brought  by  him  for  those  wages;  and  in  another,{3)  where 

(2)Hllt;.  o         J  o  V    y 

Hill, 2  Sua.       

lOy-i.  5  Johns.  Rep.  m.    Fen7ierv.  Lewis,  \0  Bo  38.    Invinv.  KnoXyid.S^S     Credit 

f3")  ,\lban  and  *•  Broxvn,  id.  305.   WuiUng  v.  Toll,  9  D'l.  141.  Hopkins  v.    Smith,  U  Johns.  Rep. 
others    .Prii-  161.    Grimes  v.  Talbot,  1  Marsh.  Rep.  '205. 

chii,  6  T.  The   mere  wdmission  of  a  debt  is  not   sufficient  to  charge  the  defendant  with  the 

Rep.  680.  whole  demand  ofth'-  plaintiff;  he  must  prove  the  amount.     Quarles's  adx.  v.  lit- 

tlepage,  &  Co  9,  H.  &  JMiinf  401.  But  it  is  alwavs  considered  the  best  evidence. 
Jiendnckaon  adr.  v.  Miller,  1  Rap.  Const.  Ct.  S   Car.  296. 

In  an  action  against  a  conslnlile  lor  not  returning  an  attachment,  the  debtor's  ac- 
knowledgnieiit  of  thf-  sura  he  owed  ihe  plaintiff,  is  good  evidence  against  the  consta- 
ble.  Stout  V.  Hopping,  1  Hidst    Rep.  125. 

Whatever  is  alleged  on  one  side,  and  riot  denied  on  the  other,  shall  be  taken  as 
true.  ..Administrator  of  Porter  v.  Kenny,  I  M'' Cord's  Rep   205, 

Whether  an  escrow  can  be  t,tfered  in  evidence  as  an  admission  of  the  defendant. 
Lansing  v.  Gaine,  2  Johns.  Rep  Sl'O. 

Eviilence  ol  the  acts  of  the  lessor  tending  to  conclude  him  and  those  claiming  un- 
der him,  will  be  received.  Jack>ion  ex  d.  Goodrich  v.  Ogdeyi,  4  Johns.  Rep.  140. 
Et  vide  Jackson  ex.  d.  Griswold  v.  Bard,  ibid.  230. 

The  confessions  of  a  tenant  as  to  his  holdi;is»,  h:ive  always  been  received  in  evi-, 
dence.  Jackson  ex  d.  Kip  v.  Murray,  1  Anth.  JV*.  P.  Cas.  75. 
"*  The  coiitession  of  a  defendant,  thai  a  siiip  carried  contraband  goods,  and  that  she 
was  seized  in  consequence,  anil  the  testioKmy  of  the  captain  to  those  facts,  was 
deemed  sufficient  evidence  of  the  law  of  Great  Britain.  Smith  v.  Elder,  3  Johns. 
Rep.  105. 

Declarations  by  the  plaintiff  that  the  defendant  was  in  possession,  are  good  evi- 
dence  for  the  defendant  in  an  action  of  trespass  juare  cfciMSMmyrej^f.  Parlaman 
V.  Parlaman,  I  Penn.  Rep.  269. 

Conversations  be' Ween  two  persons  under  one  of  whom,  the  plaintiff,  and  the  other 
defendatit  claims,  may  be  given  in  evidence.  Andreivs'  le.i.v.  Fleming,^  Dall.  Rep.  93. 
Declarations  by  a  mortgagee,  under  whom  the  defendant  claims,  may  be  given  in 
evidence.     fValthall  v.  Johnson,  2  Call.  Rep.  275, 

An  account  fil-d  by  n  partj  is  evidence  lor  hira,  if  admitted  in  evidence  against 
him.   Jones  v.  Jones,  k  H.  &  Muiif.  Rep  447. 

A  cash  account  shewn  to  the  defendant,  and  not  objected  to  by  him,  was  held %\xi- 
ficient  evidence  upon  which  the  jury  might  decide.  Coe  v.  Hutton,  1  Serg.  SJ  R. 
Rep.  .'98. 

Li  Iters  written  by  a  i>arty,  are  not  evidence  for  him,  though  they  are  against  him. 
F(rw'e  et  al.  v.   Stevenson,  1  Johns.   Cas.  in  Er.  110.  Monis's  les.  v.  Vanderen, 

1  Balh  Reii  65. 
Litters  written  to  a  witness  by  strangers,  are  not  evidence  to  prove  an  indepen- 
dent i)i;iterial  fact,  but  niay  be  received  as  introductory  evidence.  Lewis  v.  Manly, 

2  Yeates'  Rep.  ^00. 
A  lettei-  of  instructions  from  the  plaintiff  to  the  master  of  a  vessel,  at  the  time  of 

sailing,  sworn  to  be  his  only  insfi  uctinns,  was  allowed  to  be  given  in  evidence  by  the 
plaintiff  in  an  action  against  the  underwriter,  to  disprove  the  master's  authority  to 
purchase  on  their  account.  Story  et  al.  v.  Strettle,  I  DaU.  Rep.  10. 


( 


OP  EVIDENCE.  oy 

the  husband  and  wife,  who  was  executrix,  joined  in  an  action      ch.  i. 
for  a  debt  due  to  the  testator,  it  was  also  held  tliat  no  evidence  '^•'.'"'^'''""  °^ 
could  be  received  of  declarations  of  the  wife  after  her  marriage.  ^Vai'ionKv"'' 
So  a  promise  made  by  her  during  the  coverture,  will  be  no  evi-  —___>__ 
dence  to  revive   a  debt  due  from  her  before  marriage,  so  as  to 
take  the  case  out  of  the  Statute  of  Limitations. (1)     If  this  evi-(i)VideMor. 
dence  is  not  admissible  where  the  wife  is  a  party,  or  the  meri- '.'*?'■  ^'"■'""'' 

r        •  1-  -  I  /-  '  Taunt,  iiis 

torious  cause  of  action,  the  rule  applies  with  greater  force  where 
the  cause  of  action  arises  from  her  delinquency  ;  and  therefore 

In  an  action  by  ^.  arlministralor  of  B.  against  (he  administrator  of  C.  for  money 
paid  by  JS.  to  the  use  of  C.  letters  wi  itien  by  C.  to  ./J.  and  B.  jnintly,  and  (o  .d. 
separately,  which  seemingly  indii-att-  »  joint  contract,  but  not  conclusive,  are  admis- 
sible, ^sh  et  al.  V.  Putton,  3  Ser^.  &  R  Rep  300. 

An  order  to  pay  mone)  in  the  hands  of  the  drawee,  is  evidence  of  payment,  aliter 
of  an  order  to  deliver  goods.  Blunt  exr.  v.  SCarkey's  adms.  Tayl.  Rep.  110.  iS.  C. 
2  Hay-w.  Rep.  75. 

In  action  for  money  paid  by  the  surety  in  a  bond  given  to  the  JJ-  States  for  du- 
ties, against  liis  principal,  it  was  held,  that  the  possession  of  the  bond,  with  the  col- 
lector's receipt,  were  evidence  of  payment  bv  the  surety,  as  the  collector  wnuld  be 
liable  on  the  receipt,  for  the  amount  to  the  U.  States-  Sluby  v .  Champlin,  4  Johns. 
i?e/).  461. 

A  receipt  given  by  a  counsel,  who  was  deceased,  for  bonds  which  he  had  received 
to  sue  upon,  was  admitted  as  evidence  of  the  time  they  were  received,  ^^shton  v. 
Taylor,  1  Hayiv.  Rep.  395, 

The  acknowledgment  of  a  deceased  person,  who  was  competent  to  charge  him- 
self by  an  ordinary  receipt  or  acquittance,  was  admitted  as  evidence  that  he  hud  re- 
ceived money  from  the  plaintiff  for  the  defendant's  use.  HuUaday  v.  Littlepage, 
2  Mmif.  Rep.  316. 

If  the  master  of  a  vessel  sign  a  bill  of  lading,  acknowledging  that  the  goods  are  in 
good  order,  and  they  be  open  to  inspection,  and  no  fraud  be  pr.'iciised,  it  -woiddnot 
be  nnreasQuable.  in  an  action  against  the  master  for  not  delivering  the  goods  in  good 
order,  that  no  evidence  sfiould  be  admitted  to  prove  that  the  goods  were  not  in  good 
order  when  he  received  them.  Barrett  et  al.  v.  Rogers,  7  Mass.  Rep.  297. 

But  if  the  goods  are  delivered  in  packages,  and  not  open  to  inspection,  the  bill  of 
lading  would  not  be  conclusive  evidence  against  the  master  of  the  condition  of  the 
goods,  although  it  would  be  prima  facie  evidence  of  the  highest  nature,  ibid. 

In  an  action  against  the  maker  of  a  note,  proof  of  his  confession  that  he  signed  it, 
is  not  conclusive  evidence  of  the  fact ;  but  the  defendant  will  be  permitted,  notwith- 
standing such  confessions,  to  introdiice  evidence  that  the  signature  is  not  his;  and 
the  opinions  of  persons  acquainted  with  his  hand  writing,  and  a  comparison  of  the 
signature,  with  other  signatures,  proved  to  be  his,  is  proper  evidence  for  that  pur- 
pose. Ballet  al.  v.  Hnse,  10  Mass.  Rep.  39. 

If  the  confession  of  a  party  be  given  in  evidence  against  him,  it  must  be  taken  al- 
together ;  and  the  observance  of  this  rule  is  peculiarly  necessary  when  the  confes- 
sion is  introduced  for  the  purpose  of  proving  a  contract.  fVldtivells.  Wyer,et  al. 
11  Mass.  Rep.  6.  This  rule  prevails  in  civil,  as  well  as  criminal  cases.  JVeivma7z 
▼.  Bradley,  1  Dull.  Rep.  240.  Farrell  v.  M'  Clea,  ibid.  392.  Vide  Barnes  exr.  of 
Kay  v.  Kelly,  2  Hmjw.  Rep.  45. 

An  attorney  or  counsel  concerned  in  a  cause,  maybe  a  witness,  although  his  judg- 
ment fee  depends  on  his  success.  JVewman  v.  Bradley,  1  Dall.  Rep.  241. 

So,  although  he  expects  a  lai  ger  fee,  if  his  client  succeeds.  Miles  v.  O'Hara, 
\  Serg.  ^  R.  Rep.  32.— Am.  Ed. 


38  GENERAL  RULES 

Ch.  I.  in  an  action  for  enticing  away  the  plaintiff's  wife,  her  declara- 
Admission of  tions  made  at  a  subsequent  time  are  inaiimissible  ;(1)  but  if  at 
or  aitoinJy.  '  the  time  of  her  elopement  she  stated  as  a  reason  for  so  doing, 
■_  that  she  was  apprehensive  of  personal  violence  from  her  hus- 
(i)Wistnor<  band,  and  the  defendant  crediting  her  story  received  her  into 
WUi'ir'srz''''^'^  house,(2)  such  declaration  is  admissible  in  evidence  as  part 
of  the  res  gesta  to  shew  that  the  defendant  did  not  harbour  her 
SquS'!  Perk,  f''"'"  improper  motives.(g-) 

IC.  P  Cas.  8.;.      Indeed,  where  the  wife  originally  made  a  contract  which  was 
Ifst^^les       afterwards  either  expressly  or  tacitly  ratified   by  the  1  usbaud. 


(J-)  Th--  policy  of  the  law,  excludes  the  -(nuband  or  wife  from  testifv  ing,  where 
the  riglit  of  either  are  concerned.  Les.  of  Snydcf  et  al.  v.  Siii/der,  6  £inn.  Rep. 
488. 

A  husband  cannot  be  a  witness  in  a  question  whr-re  the  wife's  interest  is  concerned, 
although  her  interest  is  contingent,  and  not  tu  take  effect  until  after  his  death,  ibid. 
483. 

Ill  an  ejpctment  by  the  cliildren  o(  A.  to  recover  land  which  had  been  sold  by  or- 
der of  the  Orphans'  Court,  alies^ed  to  br  void,  one  who  has  married  the  widow  of 
A.  is  not  a  competent  witness  for  the  plaitit'ffs,  although  he  has  executed  a  release 
of  all  interest  of  dowei-  or  otherwise,     ibid. 

A  w'ife  ciinnot  be  a  witness,  where  by  hei-  testimony  her  husband  can  by  any  pos- 
sibili'y  be  eliminated  ;  as  on  an  indictmeiil  against  a  third  person  for  fornication  with 
her  husband,  the  wife  c^nnotbe  a  witness  to  prove  the  fact.  Common-wealth  V. 
Schrlver,  Quart.  Scs.  Phil.  n'20,^M  S. 

On  an  indictment  for  lornic-iiioii  and  bastardy,  a  married  woman  is  a  competent 
witness  to  prove  the  criminal  connection  with  her.  Cummontvealth  y .  JVIiller  cited, 
1  J}ro-'.vne''s  Hep.  Ap.  52.  Comnioniveidth  v.  Strieker,  ibid  47.  Common-wealth 
V.  Conellt),  ibid  284.  CommomveuHh  v.  Shepherd,  6  Binn.  Rep.  283.  The  King 
V.  M' Lean  cited,  6  Binn.  Rep.  290. 

But  she  is  not  competent  to  prove  the  non-access  of  her  husband,  ibid. 

Bui  if  the  Cnurt  permit  her  to  be  asked  a  question,  from  the  answsr  to  which 
■non-access  may  be  infi  rred,  and  afterwards  direct  the  jury  thai  they  were  not  to 
consi'Ier  any  thine:  which  tell  from  her  as  evidence  of  non-acci-ss,  and  there  is  strong 
evidence  of  non-access  h^  other  witnesses,  the  verdict  will  not  be  disturbed.  Com- 
monwealth V.  Shepherd,  6  Binn.  Rep.  283. 

In  an  indictment  for  forcible  entry,  the  wife  of  the  prosecutor  may  be  e.xamined 
to  pi'ov?  only  the  force.  Common-wealth  v.  Shrybei'  et  al.  1  Dull.  Rep.  68.  Com- 
mon-wealth V.  Devore,  !  Yeates'  Rep.  501 . 

The  deposition  of  a  wife  on  her  death  bed,  charging  her  husband  with  murdering 
her,  was  admitted  as  evidi  nee  against  him,  on  his  trial  for  the  murder.  Common- 
•weulth  V.  Stoops,  Addis  Rep.  ."^32. 

On  an  indicinif  nl  for  a  conspiracy  in  inveigling  a  young  girl  from  her  mother's 
house,  and,  she  being  intixcated,  procuring  the  marriage  ceremony  to  be  recit<  d  be- 
tween her  and  one  of  the  defendants,  the  girl  is  a  comp,  lent  witness  to  prove  the 
facts.      Commomvt^alth  v  Hevice  et  al.  2  Yeutea''  Rep.  114. 

Evidence  of  the  wife's  contcfsions,  made  subsequent  to  the  marriage,  ot  a  debt  ilue 
by  her  previous  to  the  man  iage,  are  inadmissible  to  charge  her  husband.  Ross  et 
ux.  v.  Winners,  I  Haht.  Hep.  366. 

For  i'  lit-  s-:i'iiis  of  jirigiiieni   by  a-i  attonvy  without  authority,  vide  Denton  et  aL 
y.  AV/es,  6  Johiis.  Rc'p.  296.     M'Cullough  v.  Gnetner,  1  Binn.  Rep.  214. 
He  can  take  off  a  nonpros.    Reinholt  v.  Alberti,  1  Binn.  Rep.  469. — Aa.  En. 


OF  EVIDENCE.  3g 

her  declarations  have  been  received  as  evidence  to  charge  him  ;       ch.  i. 
and  therefore  in  an  action  for  nursing  tiie  defendant's  child,  his  Admission  of 
wife's  admission  that  she  had  agreed  to  pay  4s.  a  week,  was  al-         ^''^* ' 


lowed  to  be  given  in  evidence,  the  Chief  Justice  (Pratt)  ob- 
serving, that  matters  of  this  kind  were  properly  under  the  direc- 
tions of  the  wife  ;(1)  and  in  like  manner  the  admissions  made  by  (i)  Anony- 
an  under  Sheriflr,(2)  or  bailift",  to  whom  the  warrant  is  directed,(3)  ."iT^^'s.e  also 
have  been  received  as  evidence  against  the  Sheriff,  in  an  action  Emersun  v. 
against  him  for  an  escape,  because  he  is  answerable  for  the  actsEsp.  Cas.i42. 
of  his  under  Sheriff',  or  bailiff",  and  they  give  bond  to  him  for  the 
due  performance  of  their  duty.(/t)  Dobie,  i  U\. 

But  though  in  the  cases  which  have  been  just  mentioned,  the^*''^™-  ^^^• 
admissions  of  the  wife,  the  tmder  Sheriff,  and  the  bailiff  were  (3)  >^Q,.jfj  ^, 
received  in  evidence,  it  may  still  be   doubted, (4)  whether  they  ^li't^S;  1 

.    ,    ,  •        1  r     ,1  1  .      r.i  •',  Campb.  389. 

were  rightly  received  further  than  as  part  01  the  res  gesta,  and 
we  may  now  consider  it  as  clearly  settled,  that  the  admissions  (^)^"^^^°"'' 
of  a  mere  servant  are  only  receivable   to  that  extent.     In  one  cited  1 
case,;, 5)  indeed,  where  a  person  who  was  proved  to  be  the  cap- *^''"^^'''' ^^*' 
tain  of  the  defendant's  ship,  on  board  of  which  the  plaintiff"  had  (5)Big^siy. 
delivered  goods,  had  by  letter  acknowledged  the  receipt  of  them,i'^^g"''|gf 
such  letter  was  held  by  Mr.  J.  Buller  to  be  good  evidence  of 
the  delivery.     The  propriety  of  this  decision   was  afterwards 
questioned  :  and  the  cause  being  determined  in  favour  of  the 
defendant,  on  another  ground,  the  Court  gave  no  opinion  of  this 
point;  but,  in  a  subsequent  case,(6)  Lord  Ke.vyon,  alluding  to  (6)  Bauerman 
this  decision,  expressed  a  doubt  whether  the  evidence  was  pro-  7 t' R  668' 
perly  admitted  ;(7)  and  that  learned  Judge  is  said  to  have  fre- 
quently  held  at  Nisi  Prius,  that  the  agent  must  himself  be  called  *•' '  ' 

(h)  It  is  a  well  settled  principle,  that  the  husband  is  not  bound  by  the  contract  ot 
his  wife,  unless  by  some  act  or  declaration,  prior  or  subsequent  to  the  contract,  his 
conss-nt  may  be  fairly  inferred.      Webster  v.  M'Ghinis,  5  JBinn.  Rep.  'Jotj. 

Where  the  wife  of  an  innkeeper  was  entrusted  with  the  ordinarj'  Ijusiness  of  the 
tavern,  it  was  held  that  she  had  no  authority  to  bind  the  husband,  by  a  special  con- 
tract, to  board  stage  driveis,  and  find  hay  and  oats  for  their  horses,  at  less  than  the 
usual  rates,  ibid.  235. 

Payment  made  bona  Jide  to  the  wife  in  the  usual  course  nf  dealing  of  a  <!ebt  due 
to  the  husband,  is  payment  to  the  husband.  Spencer  v.  Tisne,  Addis.  Jit-p.  315, 

But  if  made  to  take  the  management  of  an  estate  from  tiie;  husband,  it  is  no  pay- 
reent.  ibid.     Et  vide  Hughes's  adms.  y.  Stokes's  adms.  1  Hayw.  Rep.  .372 

In  an  action  ag.iinst  the  Sherilf  for  a  fi.ls(;  return,  ad(ni^siO'lS  \>\-  ihcd.  pn(y,  to  the 
plainliflF,  allowefi  .(s  evidence  a_aiiisi  the  Slieriff.  Aza  et  al.  v.  Eitlinq-er,  Anth. 
jY.  p.  74.  7;.  a.     Etvide,  Ti/Ier  v    JJI'mr,  12  Mas.  Rep.  IfiS. 

Quere,  Whether  the  acknowledgment  of  a  d-puty  Sheriff,  of  things  done  by  him 
in  th<- o'lurse  of  bis  office,  is  evidence  wgainsi  his  p- ineip;-!.  Hecker  v.  Jarret,  3 
Binn.  Rep.  404  In  the  case  of  J'lott  v.  Kip,  !<•  Johii^.  Rep.  478,  tir  cnntessions  of 
the  deputy  were  ar.nitted  to  charge  the  Sheriff.  Aza  et  al.  v.  Eitlinger,  Anth.  JV. 
P.  74, 71.  a.— Am.  Ed. 


40  GENERAL  RULES 

Ch.  L  as  a  witness ;  and  in  several  late  cases.(l)  it  has  been  held,  that 
Admission  of  letters  of  an  agent  abroad,  even  to  his  principal,  containing  an 
parinM-.         account  of  a  by -gone  transaction,   were   not  evidence  against 

i such  principal  to  prove  the  facts  stated  in  them.     These  cases, 

(i)Kaiii  V.  however  must  be  understood  as  applicable  only  to  mere  adrais- 
Jai.scm  4      sions  of  antecedent  facts,  and  not  to  what  an  agent  says  at  the 

iailnt.  D05,  "'^  . 

ReNner  r.      time  he  does  an  act  in  the  regular  course  of  his  business,  for,  in 

Thu""  663     ^^®  latter  case,  his  words  being  part  of  his  act  are  clearly  admis- 

Langhoriie  r.  sible  against  his  principal. 

Taunt'su.  Thus,  if  a  person  who  is  the  acknowledged  agent  of  another, 
make  a  contract  by  letter  or  other  writing,  proof  of  his  hand 
writing  is  sufiBcient  evidence  of  his  contract,  without  calling  him 

(2)  Daniel  v.  as  a  witness.(2)  So  where  a  man  having  made  a  policy  of  insu- 
Tr'i'Geo  3  ^^"<^^  ^^  t^6  ^'^^  ^^  ^^*  wife, (3)  (who  had  taken  a  journey  to  X'an- 
Fairiit-  v.  chcster,  for  the  purpose  of  procuring  the  certificate  of  a  surgeon 
lOVts.ju.  126. ^s  to  her  health,  preparatory  to  making  the  insurance)  she  was 
S.P-  soon  after  confined  to  her  bed  by  illness,  in  which  state  she  was 

(3)  Avison  V.  visited  by  a  friend  ;  to  whom  she  stated  that  she  was  poorly 
Lord  Kin-      when  she  went  to  Manchester,  and  that  she  was  afraid  she  should 

nainl,  0  East.  i-  -n     i  i-  t  ■>        r,i         t  r  i  ■        \ 

188.  not  live  till  the  policy  was  completed.     Shortly  after  this  she 

died,  and  an   action  being  brought  by  the  husband  on  the  po- 
licy, the  Court  held  that  the  declarations  so  made  by  the  wife 
were  admissible  in  evidence  on  the   part  of  the  defendant,  as 
shewing  her  opinion  of  the  ill  state  of  her  health  at  the  time  of  ef- 
Wood  T».         fecting  the  policy.     The  admission  of  a  person  who  is  proved  to 
1  Taunt.  104.  have  been  a  partner  with  the  party  in  the  cause  by  other  evidence, 
Pothenckf.   may  also  be  received  against  his  partner  though  made  after  the 
ib.  i05.'         dissolution  of  the  partnership.(£) 


{{)  The  power  of  an  agent  to  sell  lands  must  be  in  writing,  and  proved  b;#  in''iflFeient 
witnesses.  A^cholson's  lea.  v.  Mifflin,  2  Dali.  Rep  246.  S  C.  2  Yeates'  Hep.  38. 
S.  P.  MereditJi's  les.  v.  Miicoss,  1  Yenies'  Rep.  200.  Girard's  les.  v.  Krebs  et  al. 
cited  2  Yeates'  Rep.  38.    I^s.  of  Plumsted  v.  Ruilebagh,  1  Yeates'  Rep.  502. 

An  agent  is  not  a  competem  witness  to  p'ove  that  a  written  auth'jrity  was  given, 
but  had  been  mislaid.  J^icholsoti's  les.  v.  J\Iifflin,\it  supra. 

But  it  seems  an  ag-iit  niny  prove  the  mere  loss  of  the  written  power.  JMeredith's 
les.  V.  Jilucoss,  1  Yeates'  Rep.  200. 

But  one  who  acted  as  agent  for  another  in  the  purchase  of  land,  was  admitted  to 
establish  the  purchase.  Miller  v.  ffai/man,  1  Yeates'  Rep.  23.  Les.  of  Steward  y. 
Richardson,  2  Yeates'  Rep.  89.   , 

So  one  who  purchased  land  in  his  own  name,  may  be  admitted  to  prove  that  he 
acted  in  tht  purchase  as  agent  and  trustee  of  anothrr,  lo  whom  he  afterwards  con- 
veyed the  land.  Bro-wnv.  Dovining,  4  Serg.  &  R.  Rep.  497. 

A  broker  is  a  good  witness  in  an  action  on  the  case,  to  recover  the  difference  on 
a  stock  contract,  to  prove  ihai  he  had  received  a  verbal  authority  to  make  the  con- 
tract. Livingston  et  al.  v.  Swanwick,  2  Dall,  Rep.  300, 


OP  EVIDENCE.  ^l 

A  distinction  has  been   made  between  an   admission  and  an       ch.  T. 
offer  of  compromise,  after  a  dispute  has  arisen.     An  olFer  to  pay      Off^^rof 
a  sum  of  money  in  order  to  get  rid  of  an  action,  is  not  received      '"'"'^'^'^  ' 
as  evidence  of  a  debt :  the  reason  often  assigned  for  it  by  Lord  ^^  ^  ^ 
Mansfield  was,  that  it  must  be  permitted  to  men  "  to  buy  their  l2.>G.] 


Where  the  contract  toi-  the  trinsfer  ot  s'  nk  htid  been  madp  with  ^.  as  a  prin- 
cipal, and  an  action  had  bctn  bro  .glil  upon  ii  hy  J.  in  his  own  name,  whorein  he 
became  non  suit,  in  a  subsi-qn^nt  action  by  B.  on  the  same  contract,  it  wns  ruled 
that  Jl.  could  not  be  a  witness  to  prove  that  he  acted  as  agent  for  £.  Anderson  v. 
Hayes,  2  Teates^  Rep.  95. 

Quere,  Whether  the  principle  of  law  in  relation  to  sales  made  by  a  bi-oker,  as 
betwei'n  vendur  and  vendee,  is  applicable  to  a  case  between  vendee  and  warrantor. 
fVilUnq-  et  al.  v.  Consequa,  I  Peters^  Rep.  310. 

In  an  action  by  the  vendee  against  the  warianior  of  goods,  a  witness  who  had  given 
certificates  as  to  the  qu-ility  cf  ihe  goods,  which  were  to  be  used  in  obtaining  a  re- 
coveiv  against  the  warrantor,  and  who  expected  to  receive  a  certain  commission  oa 
the  sum  recovered,  in  consequence  of  the  certificates,  but  which  were  not  evidence 
in  the  action,  was  held  to  be  competent,  ibid.  309. 

In  an  action  of  covenant  for  n'm-payment  of  rent,  a  witness  who  was  grandson  of 
the  testator,  was  admitted  to  prove,  that  by  the  order  of  the  testator,  he  had  written 
a  letter  in  his  name  to  the  defendant,  directing  him  to  pay  two  years'  rent  to  the 
witness,  as  a  token  of  his  affection  ;  the  testator  having  been  prevented  by  a;.;e  from 
■writing  liiraseir,  and  the  witness  having  been  released  by  the  defendant.  Buchanan 
y,J[loiitgomery,'2,  Yeates'  Rep.  72. 

An  auctioneer  who  has  sold  goods  to  A.  and  committed  them  to  the  care  of  his 
servant,  to  be  delivered  to  the  vendee  on  his  performing  the  conditions  of  sale,  is  a 
competent  witness  for  the  plaintiff  in  an  action  of  rei)levin  brought  by  the  servant 
against  A.  who  had  obtained  possession  by  artifice  and  ileceit.  Harris  v.  Smith, 
3  Serg.  &  R.  Rep.  20. 

A  ship's  agent  in  a  foreign  port  is  a  competent  witness  to  prove  by  whom  gooda 
Were  shipped.     Andre  v.  Care,  3  Yeates''  Rep.  101. 

The  declarations  of  the  grantor  of  a  deed  are  inadmissible  to  prove  it  fraudulent. 
Alexander  v.  Goidd,  1  Mass.  Rep.  165.  Et  vide  Clarke  v.  fVaite,  12  Bo.  439. 
And  further  as  to  the  admissibility  of  persons  not  parties.  Greenwood  v,  Curtis, 
6  Bo   358.     Appleton  v.  Boyd,  7  Bo.  131. 

An  agent  who  has  promised  to  refund  money  received  on  account  of  his  princi- 
pal, in  case  a  yerdict  pass  against  him  in  a  particular  suit,  is  a  good  witness  in  that 
suit.     Renendet  V.  Crocker,!  Caines''  Rep.  167. 

An  agent  is  a  competent  witness  ex  necessitate.  Cortes  v.  Billings,  1  Johns.  Cas. 
270. 

An  agent  of  the  insured  who  applies  to  the  broker  to  have  the  insurance  effected 
is,  like  all  other  agents,  a  competent  witness  ex  necessitate.      -JMackay   v.   Rhine' 
lander,  1  .Tohv.s.  Cas.  408.     Vide  Burtinghamv.  Deyer,  2  Johns.  Rep.  189. 

The  declarations  of  the  wife,  while  acting  as  agent  for  her  husband,  may  be  given 
in  evidence  in  a  suit  brought  by  him.  Hughes's  adins.  v.  Stokes's  adms.  1  Hayiu- 
Rep.  372. 

Hearsay,  from  the  a':;ent  of  defendant,  may  be  given  in  evidence  against  him.  Per- 
kins V.  Burnet,  2  Root's  Rep  30. 

What  the  son  of  d>  fendanl  had  s:^id  when  acting  as  attorney  for  his  fallier,  may  be 
given  in  evidence.    Mather  v.  Phelps,  ibid.  150.  Et  vide  Dyer  v.  Girard,  ibid  55. 

G 


4;S 


GENERAL  RULES 


Ch.  L       peace,"  without  prejudice  to  them  if  such  offer  did  not  succeed; 
Offer  or     and  such  offers  are  made  to  stop  litigation,  without  regard  to  the 

Compromise. 


Qiiere,  Whether  an  agent,  authorised  to  purchase  goods  at  a  certain  price,  and  af 
a  certain  credit,  can  agree,  so  as  to  bind  his  principal  to  give  endorsed  notes  or  se- 
curities. Bailey  et  al.  v.  Ogden  et  al.  3  Johns.  Rep  399. 

The  authority  of  one  as  Hgt-nt  for  the  plaintiff  to  discharge  the  defendant  from 
custody,  on  an  execution,  without  satisfaction  ot  the  debt,  must  be  clearly  and  fully 
proved,  and  strictly  pursued.    Crary  et  al.  v.  Turner,  6  Johns.  Rep.  51. 

IF  tlie  agent  exceed  his  authority  to  draw  bills  on  his  principal,  he  is  not  bound  lo 
accept  them.  Hopkins  v.  Blane,  1  Call's  Rep.  361.  Bhme  v.  Proudfit,  3  Do.  207. 
Tunno  v.  Sukely,  2  Bay's  Rep.  505. 

If  the  agent  be  in  the  habit  of  (h-awing  bills  in  consequence  of  a  notorious  agency, 
which  h:ive  been  regularly  p^id  by  the  principal,  he  will  be  bound  to  pay  otherbills 
drawn  upon  hiio,  although  the  agent  misapply  their  proceeds.  Ilooe  et  al.y.  Ox- 
ley  et  id.  1  Wash.  Rep.  23.   Bro-u/n  \ .  Ball,  3  Mass.  Rep.  211. 

The  act  of  the  agent  becon^'s  the  act  of  the  principal,  viiere  the  agent  uses  a 
discretion  within  his  jiower,  or  his  acts  are  sanctioned  by  the  principal.  X^'/e  v.  Cla- 
son,  1  Caines''  Rep.  323. 

The  acts  of  the  principal,  adopting  those  of  liis  agent,  are  to  be  liberally  construed. 
Cod-Msect  al.  \\  Hucktr,  ibid.  526. 

An  agent  or  broker  authorised  to  purchase  goods  on  certain  terms,  is  a  competent 
witness,  in  a  suit  between  the  vendor  and  vendee,  though  he  has  exceeded  his  autho- 
rity.   Bailey  et  al.  v.  Ogden,  3  Johns.  Rep.  394. 

If  in  consetjuence  of  a  notorious  agency,  the  agent  is  in  the  habit  of  drawing  bills, 
■which  the  princijjal  has  regularly  paid,  this  is  such  an  affirmance  of  his  power  to 
draw,  that  the  princi|)al  will  be  bound  to  pay  other  bills,  though  the  agent  should 
misapi>ly  the  money  raised  by  such  bills.  Hooe  et  al.  v.  O-rley  et  al.  1  If'ash.  Rep. 
19.  Et  vide  Hopkins  v.  Blane,  1  CalPs  Rep.  361.  Bla7ie  v.  Projidft,  2  Do.  207. 
Brown  v.  Bnll,  3  J\lass.  Rep.  211.   Tunno  v.  Sukely,  2  Bay's  Rep.  505. 

A  foreign  consul  is  not  responsible  in  an  aeiion  on  a  contract  made  by  him  on  ac- 
count of  his  government.  Joiies  v.  Le  To7nbe,  3  Dall.  Rep.  384  .  El  vide  Hodgson  v. 
Dexter,  I  Crunch's  Rep.  345.  Symev.  Butler,  1  Call's  Rep.  105.  Tutt  v,  Le~.vi^, 
3  Do.  2,i3. 

In  JMassachusetts,  vide  Broxvn  v.  Austin,  1  JMass.  Rep.  208.  Bainbridge  v. 
Doivnie,  6  Do.  253  Tippets  v.  JJ'alker,  et  al.  4  Do.  595.  Swmier  adm.  v.  Wil- 
liams et  cd.  8  Do.  198.  Freeman  v.  Otis,  9  Do.  272.  Mann  v.  ChaniUer,  ibid.  S55. 
Dawes  v.  Jackson,  ibid.  490. 

\n  JVeiv  York,  \m\'j  .Sheffield  \\  JVatson,  3  C allies'  Rep.  70.  Gill  \.  Brown,  12 
Johns.  Rep.  3S5.  Walker  v.  Swartivout,  \'2  Johns.  Rep,  i^.  Swift  \.  Hopkins, 
13  JJo.  313.    Branson  v.  Woolsey,  17  Do.  46. 

As  to  the  liability  o( public  agents  Inv  payments  of  money  coming  into  tlieir  hands 

officnily,  vide  Peiihallow  v.  Doane,  3  Dull.  Rep.  54.  Hilh  et  al.  v.  Ross,  ibid.  331. 

Notice  to  the  agent  is  not  requisite  in  the  ease  ot  a  conipulsoiy  payment,  and  one 

not  made  expressly  for   the  use  ot  the  principal.    Ripley  et  al.  v.   Gehton,  9  Johiis. 

Rep. 201. 

An  agent  is  not  liable  for  pa)ing  over  money  without  notice.  Ashe  v.  Livingston, 
^  Bay's  Rep.  85. 

Where  an  agent  received  a  bill  for  colleciioii,  alibough  his  conduct  in  the  first 
instance  would  inake  hitn  liable  to  his  princip^ds,  yet  liiey  might  waive  his  responsi- 
bility b\  rat!f)ing  Ins  acts.  Fowle  et  al.  v.  Slephenson,  I  Johns.  Cas.  110.  Codwise 
et  cd  v.  Hacker,  1  Caines'  Rep.  627. 

A  rnaster  IS  noi  answerable  in  damages  for  the  unauthorised  acts  of  his  negroes, 
Snee  v.  Fiice,  2  Bay's  Rep.  345.— Am.  Ed. 


OF  EVIDENCE. 


43 


Com 


promise. 


question,  whether  any  thinj;,  or  what  is  due.     Therefore,  if  .^.       ch.  I. 
sue  B.  for  100/.  and  B  offer  to  pay  him  20/.  it  shall  not  be  re-  eiof 

ceived  in  evidence  ;  for  this  neither  admits  nor  ascertains  any 
debt,  and  is  no  more  than  saying,  he  would  give  20/.  to  get  rid 
of  the  action  ;  but  if  an  account  consist  of  ten  articles,  and  B. 
admit  that  such  a  one  is  due,  it  will  be  good  evidence  for  so 
much.(A;) 

Admissions  oi particular  articles  before  an  arbitrator  are  also}!^^'|*^''*,'^g^'- 
good  evidence,  for  they  are  not  made  with  a  view  to  compromise,  N.  P.  [236] 
but  the  parties  are  contesting  their  different  rights  as  much  as  ^i,^,^,^^,'  ' 
they  could  do  on  a  trial. (/)  Peakc'sCas.s. 

On  the  same  principle,  the   confession  of  a  felon  voluntarily  Confession  of  a 
made  is  evidence  against  him  on  his  trial  ;  but  if  any  threats  or 
promises  have  been  made  to  induce  him  to  confess,  no  evidence 
of  such  confession  is  admitted  ;  for  a  man,  under  such  influence, 
might  be  tempted  to   confess  what  was  not  true,  in  the  hope  of 
being  discharged  from  prosecution,  or  of  receiving  a  slighter  pun- 
ishment than  if  he  were  convicted   on  other  evidence  ;   yet,  if 
in  consequence  of  the  confession  so  obtained,  the  stolen  property 
be  found,  evidence  of  that  fact  may  be  admitted,  though  the  con-^!^^\'-^y^^' 
fession  as  to  the  circumstances  under  which  it  was  taken,  cannot  Leach.  Cro, 
be  given  in  evidence.(m)  ^^^'  ^'•^^• 

{k)  An  offer  made  by  one  pivrty,  but  not  accepted  by  the  other,  cannot  hi-  given  in 
evidence.  Ilerr  v,  Slough,  2  Broiuiies^  Rep.  112.  n.  Slociim  v.  Perkins,  3  Scrg. 
&  R.  Rep.  295.     Baird  v.  Rice,  I  CalVs  Rep  26. 

Yet  if  it  contains  an  admission  of  a  fact,  it  may  be  used  to  prove  that  fact.  Church 
T.  SteeWs  heirs,  I  JMarsh.  Rep.  328.    Vide  ante. — Am.  Ed. 

[l)  In  Pennsylvania,  evidence  of  what  passed  before  referees  or  arbitrators,  be- 
tween the  parlies,  may  be  given  in  evidence. — Ak.  Ed. 

{in)  ^  confession  of  a  prisoner  put  in  writing,  from  his  month  by  a  magistrate, 
though  not  sillied  by  the  prisoner,  was  admitted  on  a  trial  for  murder.  Coinmon- 
■wealth  V.  Stoops,  Jlddis.  Rep.  383. 

The  wholi-  confession  ought  t<>  be  taken  together,  in  a  criminal  as  well  as  a  civil 
case.  J\'e7uman\.  Bradley,  \  Dal'.  Rep.^iO.  F(irrell\.jytClea,il)id.S9'2.  Barnes 
exr.  of  Kay  v    Kelly,  2  Hayw.  Rep.  45. 

On  an  indictment  for  murder  On  the  high  seas,  by  means  of  poison,  thi'  Court  ad-  | 
mitted  evidence  of  a  conversation,  in  which  the  defendant,  alter  the  murder  had 
been  committed,  inforn)ed  the  witness  ofa  coitc^jjilated  pl;m  to  adminisltr  poison 
to  the  crew  of  a  vessel,  adding  that  he  had  exp-iifiice  of  it;  the  evidence  being 
admitted  to  prove  an  ack.owlfdgment  that  the  witness  hail  adfiiinistered  j-oisuii  pre- 
viously, and  the  acknowledgni<-;it  that  "  he  had  experience  of  it,"  not  being  inielli- 
gible,  wiihinit  connecting  it  with  the  rest  of  the  conversation.  U.  States  v.  Tardy, 
1  Peters'  Rep.  458. 

Conh  ision  of  goilt  made  by  th'-  defendant  under  promise.s  of  favour  to  br-  shewn 
him  by  the  pros^cutl)r,  are  not  admissible  in  evidence  against  him.  CommomueuUli 
V.  Chabbock^^Mass.  Rep.  144. 


4cj,  GENERAL  RULES 

Ch.  L  In  like  manner  as  what  a  man  says  will  be  evidence  against 

Acts  'mount-  him  of  tlie  fact  so  admitted  ;  acts  done  by  him  will  sometimes 
sWvis"  '  preclude  him  from  disputing  his  situation.  If  a  man  hold  him- 
_____  self  out  to  the  public  as  filling  any  particular  station,  he  pre- 
vents the  necessity  of  evidence  against  him  to  prove  that  he  is 
l?*'^""''.,}^''  legally  entitled   to  it.(n)     Thus,  if  a  clergyman  receive  tithes, 

iiaiiis    3  1. 

Rep.  635,  n.  and  <in  action  is  brought  against  him  for  non-residence,  the  proof 
of  his  having  so  received  tithes,  and  acted  in  the  character  of 
parson,  is  sufficient  evidence  that  he  is  so  :  or  if  an  innkeeper 

(l)K«<^['"'''''  write  over   his  door   that  he  is   licensed   to  let  post-horses,(l) 

Repre'o?.  and  afterwards  commit  an  offence  against  the  post-horse  Act, 
there  needs  no  evidence  of  his  being  licensed,  than  the  in- 
formation so  held  out  by  himself  to  the  public.  If  a  man  live 
^  with  a  woman  to  whom  he  is  not  married,  and  suffer  her  to  pass 

(2)  Watson  r.  in  the  world  as  his  wife, (2)  he  will  be  answerable  for  such  con- 

liiivlkeld,  '2  j.,.j^(,^s  made  by  her,  us  would   be  binding  on   him   if  made  by  a 
Lsp.  Las.  Out ,  •'  '  .    ^      J,       .  "^ 

woman  to  whom  he  was  actually  married  ;  for  in  all  these  cases 

A  ennli  ssion  bt  fore  a  tiiagisirate,  ihougli  not  in  writing,  will  be  received.  Xtate 
V.  Irwhi;  I  Uayti'.  Jiefi.  112. 

A  cDiiff ssion  of  sj'iili  u'lcoiToboratcd  by  circnnistancfS,  not  evidence  in  a  criminal 
case  1..  c'invii-.t.     Shite  \.  Long,  \  Ilaiiit!.  Rep.  \S&.     State  v.  JMoore,  ibid.  iS2. 

Tbi-  coni'.ssion  ot"a  prisoner,  tboii:;h  confiileitial,  may  bi-  given  in  evidence  on  a 
trial  iigainst  him.     The  State  v.  Thoinpson.   Kirb,  Rep.  345. 

Bui  wliat  is  disclDSKi  to  the  Auorney  Gi  iieral,  upon  .application  made  to  the  pri- 
son ir,  >Iia  1  not  be  given  in  t-vidence  asjainsi  bim.     The  Stute  v.  Phelps,  ibid.  282. 

On  Mn  info'-iiiatirin  for  counterfeiting  guineas,  evidence  of  the  conf  ssion  of  the  par- 
ty was  adiuiticrl,  (bough  the  guineas  were  not  produced.  The  State  v.  Phelps,  2 
Root.  Rep    87. 

If  tbi- cohitssion  of  defendant  be  obtaineil  bv  personal  s?/^e)7>!^  it  ought  not  to 
■weigh  in  tin-  least.  V  \iy  fear  or  Jiattetnf .  the  jury  must  determine  its  weight;  and 
if  uM.«ni)|inrle(l  by  circumstances,  it  i-innot  operate  to  convict.  The  State  v.  Jen- 
kins,^l  Tyl.   Rep.  577.     Virle  fliunilton  v.  JVilUams,  1  Do.  15. 

The  ■  Npei-taiioii  alone  of rcy  will  not  destroy  the  credit  of  a  confession.    CoJn- 

mon-U).'.ilth  \ .  Dillon,  \  Dall   Rep.  lid. 

Th'-  cofilessioi)  of  the  ilet'endant,  on  a  trial  fo;'  high  treason,  will  be  received  in 
evidence.  Respnf/Uca  v.  Roberts,  1  Ball.  Rep.  39.  Respublica  v.  J\T'Carty,2 
Do.  86. 

The  confession  of  a  party  is  the  highest  evidence.  Corp.  of  Colnm.  v.  Harnson, 
2  Rep.  Const.  Ct.  S.  Cnj-olina,  21 5. —.\.yi    Ed. 

(7i)  In  case  of  all  peace  ofTicerf,  constaldes,  &c.  it  is  sufficient  to  prove  that  they 
acted  .n  lhi!se  characters  without  producing  their  appointments.  Potter  v.  Luther, 
S  John  <.  Rep  4,S'.  Reed  v.  Gillet,  12  i)o. '296.  Foicler  v.Beheeetal.  %  Mass. 
Bep    231.     Young  et  al  v.  The  CommonTvcalih,  6  Binn.  Rep.  88. 

The  [icknowl.-ilgnienl  of  a  deed  before  a  person  who  styles  himself  a  justice  of 
the  Court  of  Coioii.on  Pleas,  \i  prima  facie  e\iilence  that  lie  is  such.  Les.  of  Wil- 
link  V,  Miles,  1  Peter-o'  Rep.  429. 

The  acting  '"  a  public  capavity  merely  raises  a  presumption  of  a  due  appoint- 
ment, and  does  not  exclude  evidence  to  the  contrary.  Rex  v.  Vcrelst,  3  Camp. 
Rep.  432.— Am.  Ed. 


OP  F.VTDKNCE.  45 

the  person  avails  himself,  as  far  as  is  in  his  power,  of  the  legal      ch.  I, 
benefits  of  the   situation,  and    therefore  the  law  considers  his  Pre^s^imptive 
own  acts  as  conclusive  evidence  to  charge  him  with  the  duties  ^^J^^^^^^^ 

of  it/o) 

So  in  many  cases  where  one  man  treats  with  another,  as  fill- 
ing a  particular  station,  and  derives  a  benefit  from  him,  he  will 
not  afterwards  be  permitted  to  dispute  his  title,  as  if  a  farmer 
take  his  tithes  by  permission  of  the  clergyman,  or  a  person  let-  ^ 

tin"-  out  post-horses  account  with  another  as  farmer  of  the  duty,(l)  (i)  Radford  ij. 
the  person  so  admitting  the  title  of  the  other  and  acting  under  .j,'^^'^^|^'g'32. 
it,  will  not  be  permitted  afterwards  to  call  on  him  to  prove  it: 
and  in  like  manner  where  A.  rented  the  glebe  lands  of  a  rectory 
of  B.  the  incumbent,  and  paid  him  rent,(2)  he  was  not  permitted  (2)  Cooke^. 
in  an  action  for  use  and  occupation  to  dispute  the  title  of  his  (^".p  4' 
lessor  by  proving  that  his  presentation  was  simoniacal.  So  where 
two  persons  who  were  alien  enemies,  carried  on  trade  at  Lisbon 
under  the  name  of  a  third,  who  was  a  Portuguese,  which  coun- 
try was  in  amity  with  this  country,  and  on  a  cargo  which  they 
had  shipped  being  captured  and  libelled   as  enemy's  property, 
they  permitted  such  third  person  to  claim  the  goods  in  the  Ad- 
miralty Court  as  his  own,  and  to  obtain  a  decree  for  the  resti- 
tution of  them  to  him  ;  the  persons  who  had  thus  colluded  with 
a  third  to  deceive  the  Court,  were  held  to  be  estopped  from  af- 
terwards maintaining  an   action  for  money  had  and  received 
against  him  to  recover  the  value  of  the  goods.(S)  (3)DeMitton 

Most  of  the  foregoing  cases  may  be  classed  under  the  head  of  ^2  East  234.' 
presumptive  evidence ;  for  there  was  no  proof  of  the  particular 
fact;  but  the  conduct  of  the  party  afforded  such  pregnant  evi- 
dence of  it,  that  he  was  precluded  from  denying  it.  This  is  the 
most  violent  presumption  ;  but  there  are  other  presumptions 
which  are  only  probable,  and  therefore  may  be  rebutted  ;  for  in 
all  cases  where  positive  and  direct  evidence  is  not  to  be  obtained 
the  proof  of  circumstances,  and  facts  consistent  with  the  claim 
of  one  party,  and  inconsistent  with  that  of  the  other,  is  deemed 
suflicient  to  enable  a  Court  of  Justice,  or  more  correctly  speak- 
ing, a  jury  under  its  direction,  to  presume  the  particular  fact 
which  is  the  subject  of  controversy  ;  for  the  mind,  comparing  the 
circumstances  of  the  particular  case  with  the  ordinary  transac- 
tions of  mankind,  judges  from  those  circumstances  as  to  the;jro- 

(0)  Till'  wife  may  be  constitulcil  the  Mg'iil  P>r  the  liusban'l,  and  payment  to  her 
>n  the  iisuul  course  of  ho'-iness  wdl  be  conclusive  on  him  Spencer  y.  Tissue,  Addis, 
Rep.  319.     Hnghes^  adma.  v.  Stokes^  culms.  1  IIay~.v.  Rep.  37'2. 

Vide  post  Chap.  II.  sec.  2. — Am.  Ed. 


46  GRNERAL  RTrr.ES 

Cli.  I.       buhility  of  the  story,  and  for  want  of  better  evidence,  draws  a 
^E,\\^\'c^^^  conclusion  from  that  before  it.   Long  and  undisputed  possession 
of  any  right  or  property,  aftbrds  a  presumption  that  it  had  a  le- 
gal foundation,  and  rather  than   to  disturb  men's  possessions, 
even  records  have  been  presumed. 

Thus  where  there  had  been  a  long  and  uninterupted  enjoy- 
ment of  a  rectory,  which  originally  belonged  to  the  Crown,  a 


a 


Search  ^^  grant  was  presumed,(l)  as  was  a  conveyance  of  tithe  hay,  be- 
12  Co.  5.  fore  the  restraining  Statutes,  thou<>;h  an  ancient  endowment 
banT  cited  '"  ^^®  shcrt^n  :(2)  and  where  a  corporation  had  for  three  hundred 
Cowp.  103,  and  afty  years  been  in  the  receipt  of  port  duties,  which  could 
399^  ■  ^"only  originate  in  a  grant  from  the  Crown,  such  grant  was  also 
presumed,(3)  as  was  an  enfranchi'^ement  of  lands,  originally 
mouth  r.  copyhold,  which  had  long  been  occupied  and  treated  as  free- 
Roberts,  12  hold/4)  *  And  where  a  Lord  of  a  manor  entered  into  ah  agree- 
East,  534,  ^  \  » 
sedvid.>  post,  ment  with  several  customary  tenants  as  to  the  terms  on  which 
[414.] 

(3)  Mavor  of 

Kingston  ui)on      *  In  like  manner  h  recoverv  has  been  presumed  after  a  very  long  possession. 
HuUt'.  Hor-    Hasaeklen  v.  Bradncv,  Tr.  11,  12  Geo.  1,  B  R  cited  3  T.  liep.  159.  and  now  by 
ner,  Cowp.       Stat.  14   Geo.  2.  c.  20,  it  is  expressly  provided,  '«  That  all  common  recoveries  suf- 
fered or  to  be  suffered  without  any  surrender  of  the  leases  for  life,  shall  be  valid  : 

(4)  Roe  dera.  pi"ovided  it  shall  not  extend  to  mak*  any  recovery  valid,  unless  the  person  entitled 
Johnson  v.  to  the  first  estate  for  life,  or  other  greater  estate,  have  or  shall  convey,  or  join  io 
Ireland,  II  conveyine;  an  estate  for  life,  at  least  to  the  tenunt  to  the  pr<ecipe^'  And  by  the  same 
t.ast.  ..oO.         Act,  where  any  person  has  or  shall  purchase  for  a  valuable  consideration  an}  estate, 

whereof  a  recovery  was  necessary  to  complete  the  title,  such  person,  and  all  claim- 
ing undi  !■  him,  having  been  in  possession  from  the  time  of  such  purchase,  shall  and 
may,  after  the  end  of  tv/ent)'  years  from  the  time  of  such  purchase,  produce  in  evi- 
dence the  deed  making  a  tenant  to  the  pnecipe,  and  declaring  the  uses  ;  and  the 
deed  so  produced  (the  execution  thereof  being  duly  proved)  shall  be  deemed  suf- 
ficient evidi'oce  that  such  recovery  was  duly  suffered,  in  case  no  record  can  be  found 
of  such  recovery,  oi-  the  same  should  appear  not  regularly  entered  :  Provided,  that 
the  p(  rson  makino-  snch  deed  had  a  sufficient  estate  and  power  to  make  a  ti^nant  to 
i\-\e  prtecipe,  and  to  suffer  such  common  recovery.  It  is  further  enacted,  that  every 
common  recovery  suffered,  or  to  be  suffered,  shall,  after  the  expiration  of  twenty 
years,  he  deemed  valid,  if  it  a|>pear  upon  the  f;ice  of  such  recovery  that  there  was  a 
tenai.t  to  the  writ,  a, id  if  the  persons  joining  in  such  recovery  had  a  sufficient  estate 
or  power  to  suffer  the  same,  notwithstanding  the  deed  lo  make  a  tenant  to  such  writ 
shall  be  lost.  It  is  further  enacted,  that  every  recovery  shall  be  deemed  valid,  not- 
withstanding the  fine  or  deed  making  a  tenant  to  such  writ  shall  be  levied  or  exe- 
cuted after  the  time  of  the  judgment  given,  and  the  award  of  seisin  :  provided  the 
same  appear  to  be-  levied  or  executed  before  the  end  of  the  term  in  which  such  re- 
covery was  suffeied,  and  the  persons  joining  in  such  recovery  had  a  sufficient  estate 
and  power  to  suffer  the  same.  This  Act  only  extends  to  cases  where  the  party  suf- 
fering the  recovery,  had  a  sufficient  estate  to  enable  him  to  do  so,  and  does  not  alter 
the  rules  of  evid<  nee  in  the  c;ise  of  a  recovery,  suffered  by  a  tenant  in  tail  in  remain- 
der during  the  existence  of  the  estate  for  life.  In  such  case  if  the  possession  has  long 
gone  according  to  the  recovery,  a  surrtniler  of  the  life  estate  will  be  |>resumed;  but 
if  disputed  recently  after  the  death  of  the  person  who  was  entitled  to  hold  without 
the  aid  ol  the  recovery,  it  will  not.     Bndges  v.  Duke  of  Chandos,  2  Burr.  1065. 


OP  EVIDENCE.  ^ 

they  should  in  future  cut  their  wood,  a  subsequent  diflferent      ch.  I. 
course  of  cutting  by  the  occupiers  of  one  of  the  estates  with  the  Pivsumpttve 
knowledge  of  the  Lord,  was  held  to  be  admissible,  though  not  __J22!!!Il 
very  strong  evidence,  to  shew  that  the  deed  had  been  departed 
from,  and  some  subsequent  grant  made  authorising  such  mode 
of  cutting  by  the  tenant  of  the  particular   estate.(l)     So  the  (i)  Blackett 
production  of  an  original  lease  for  a  long  term,  and  P'oof  of  pos-2Yi°^^i"gj 
session  for  seventy  years,  has  been  held  sufficient  evidence  ofSelwyn,  494. 
an  assignment  ;(2)  and  possession  for  twenty  years,  and  an  as-(2)  Earl  dem. 
signment  of  an  old  term  of  two  thousand  years,  sufficient  to  pre-  Goodwin  v. 
sume  the  original  grant  of  the  term.(3)     In  like  manner,  if  ag  Blac.'i228. 
landlord  give  a  receipt  for  rent  due  at  Michaelmas,  and  after-, ^^^      , 

r     1       1  T  •      r        •  1  (3)Denndem. 

wards  claim  rent  due  at  Lady -day  preceding,  it  furnishes  a  Tarzweii  v. 
still  stronger  presumption  that  such  preceding  rent  has  been  ^"'■"'"'''', 
paid ;  and  where  a  stale  demand  is  made  in  a  Court  of  Justice, 
the  very  circumstance  of  its  coming  late,  in  all  cases  inclines 
the  mind  to  suspect  that  it  has  not  a  just  foundation,  and  in 
many  has  been  taken  as  complete  evidence  of  the  non-existence 
or  payment  of  it ;  but  these  latter  cases  resting  on  presumption, 
and  not  on  positive  proof,  very  slight  evidence  is  sufficient  to 
rebut  and  overturn  them,  and  to  call  on  the  different  parties  to 
establish  their  respective  rights  by  the  ordinary  rules  of  evi- 
dence.(^) 


[p)  Nine  j'ears  is  not  a  sufficient  lapse  of  time  to  afForda  presumption  of  re-entry 

for  the  payment  of  rent.     Jackson  ex  d.  Donaliy  et  al.  v.  Walsh,  3  Johns.  Hep.  226. 

Tlie  receipt  for  rent  arising  at  a  subsequent  pi'riod  is  presumptive  evidence  that 

all  rent  previously  accruing  had  been  paid.     Decker  v.  Livingston  et  al.  15  Johns. 

Rep.  479. 

Where  a  deed  dated  lilh  J\ray,  1767,  recited  that  several  of  the  grantors  con- 
veyed by  F.  their  attorney,  if  was  held,  in  1809,  that  after  so  great  a  lapse  of  time, 
and  an  acquiescence  in  the  title  under  that  deed,  tlie  power  of  attorney  was  to  be 
deemed  valid,  without  being  produced,  or  proof  of  its  execution.  Doe  ex  d.  Clin- 
ton et  al.  V.  Phelps,  9  Johris.  Rep.  169.  S.  P.  Doe  ex  d.  Clinton  et  al.  v.  Camp- 
bell, 10  Do.  ATS. 

A  map  and  field  book  of  partition,  under  the  Colon'fl  Act  of  1762,  presumed  in 
1813.  Jackonex.  d  The  People  v.  Wood,  12  JoJms.  Rep.  242. 

After  a  li-ssee  has  quitteil  the  demised  premises,  without  ever  having  paid  rent, 
and  after  fourteen  years  possestion  undei-  conveyances  from  a  lessor,  who  had  a 
right  to  enter  in  defiiult  of  p'lym  nt,a  deninnd  and  re-entry  will  bepresnmed.  Jack- 
son ex.  d.  Goose  v.  Demarect,  2  Caines''  Rep,  382.  Et  vide  Jackson  ex.  d.  Smith 
T.  Sleivart,  6  Johns.  Rep.  34. 

Where  a  pet  son  might  have  claimed  a  conveyance  from  a  devisee,  by  virtue  of  a 
trust  ill  the  will  of  the  flevisor,  and  entered  on  the  premises  in  1752,  and  hafi  unin- 
terrupted possession,  as  far  as  possible,  a  deed  is  to  be  presumed.  Vwi  Dijck  v. 
Van  Benrcn.,  I  Caines''  Rep.  84.  Et  vide  Jackson  ex'  d.  Gillespey  et  al.  v.  JVool- 
sey.U  Johnn.  Rep  446. 

An  ouster  was  presumed  where  no  claim  had  been  made  for  forty-two  years. 
ibid. 


4-8  GENERAL  RULES 

Ch.  I.  Where  a  bond  has  not  been  put  in  suit,  or  interest  paid  upon 

Presumptive  it,  for  twenty  years,  the  law  calls  upon  tlie  obligee  to  give  some 

Evidt-Ace.  r        .''^ii  i-       irii-i-       i- 

reason  for  the  nelaj,  and  in  aetault  ot  his   doing   so,   presumes 


tliat  it  has  been  paid  ;  and  the  same  rule  applies  to  a  scire  facias 
(1)  Forbes  t'.  brought  for  execution  on  a  judgment ;( I  j  but  in  the  case  of  a 
532.  '  ^' small  demand,  which  the  party  had  no  particular  interest  to 
Colsel  V.  collect,  the  rule  does  not  apply,  and  therefore  it  has  been  held, 
1  Caiiipb.  27.  that  mere  length  of  time,  short  of  the  Statute  of  Limitali  .  i«,  un- 
Curteis  and    accompanied  by  other  circumstances,  is  not  suflBcient  to  found 

anothtr  v.  •  «>  i 

Fitzpatrick     a  presumption  of  d  release  of  a  quit-rent.(2) 

and  another, 

K.  B.  att.  M. 

r.  1796.  \  grant  of  lands  under  navigable  waters  to  the  owners  of  the  adjact  nt  soil,  -s  not 

^„.  pi  1  .'H        to  be  presumed  wiihout  evidence  of  long  exchisive  possession  and  use     Palmer  v. 
v.  Knott  Hicks,  6  Johns.  Rep.  133.  Cutlar  v.  Blacfcman,  -I  Car.  Law  Rep   567. 

Cowp.  214.  Nora  grant  cmfeni'.o;  an  entire  liile  to  lands,  from  lengtii  of  possession  alone. 

Sumner  et  al.  v.  Child,  2  Con.  Rep.  607. 

Where  an  agreement  tor  th'-  sale  of  a  piece  of  land  in  1689,  was  piodncf-d,  the 
jury  were  allowed  in  1809,  to  presume  a  conveyance.  Jacksonv.  J[Iurray,  7  Johns, 
Rep.  5. 

Where  the  location  of  a  patent  or  grant  executed  nearly  a  century  ago  comes  in 
question,  every  presumption  will  be  made  against  a  party  who  neglected  to  have  his 
land  sui'veyed,  and  its  boundaries  defined,  or  to  make  an  actual  location  of  them  at 
the  time.  Jackson  ex  d.  Uardenbergh  v.  Schoonmaker ,  7  Johns.  Rep.  12. 

Where  j\I.  died  in  possi  ssion  ol  land,  ami  his  son  :ind  heir  at  law  succeeded  him, 
and  continued  in  undisturbed  possession  for  above  eighteen  years,  it  was  held,  that 
a  purchase  by  the  ancestor  might  be  presumed.  Jackson  ex  d.  jM^ Donald  v. 
M'Call,  10  Johns.  Rep.  377 

Where  there  was  an  order  of  council  of  the  colon  VofJX'ety  York,  in  1764,  for  the 
survey  of  a  lot  allotted  to/.  P.  and  ii  survey  made,  thnngh  no  patent  could  be  found 
on  record,  it  vasheld,  that  a  patent  in  J.  P.  and  a  deed  from  him  might  be  presum- 
ed,  ibid. 

In  a  suit  on  a  note  by  A.  against  B.  it  was  held,  that  a  jury,  from  circumstances, 
might  infer  a  re-delivery  of  the  note,  and  that  the  facts  were  sufficient  evidence  of  a 
performance  of  the  condition  on  whicii  it  was  left  with  C.,  or  that  £.  had  waived  or 
dispensed  with  its  performance.     Grote  v.  Grote,  ibid.  402. 

Where  in  a  sale  under  a  power  in  a  mortgage,  a  drain  was  excepted,  it  was  in- 
tended, after  the  lapse  of  sixteen  years  from  the  sale,  that  it  had  antecedently  ex- 
isted, and  was  founded  in  usage.     Bergen  v.  Bennet,  1    Caines''  Cas.  in  Error,  1. 

Where  the  lessor  had,  thirty-five  years  bifore  the  defendant  catne  into  possession 
of  the  part  he  claimed,  exerciseil  acts  of  nwnersiiip  of  part,  and  claimed  the  whole, 
which  was  admitted  by  all  the  settlers  on  the  part  until  many  years  after  defen- 
dant's entry,  it  is  to  be  inferred  that  defendant  came  in  under  the  lessor,  and  a  grant 
from  the  original  patentees  to  him  must  be  presumed.  Jackson  v.  Lunn,  3  Johns. 
Cas.  109. 

In  ejectment,  a  possession  for  less  than  twenty  years  will  form  a  presumption  of 
title  sufficient  to  put  the  tenant  on  his  defence.  Smith  v.  Lornlard,  10  Johns  Rep. 
338. 

If  the  Clerk  of  the  Court  certify  at  ihe  font  of  a  paper  purporting  to  be  a  record, 
"  that  the  aforegoing  is  tridy  taken  from  the  record  of  the  proceedings"  of  his  Court, 
and  the  presiding  magistrate  ceitif'-  that  such  ;itt<  .station  us  in  due  form  of  law,  it 
will  be  presumed  to  be  a  full  copy  of  all  the  proceedings  in  the  case.  Fei-guson 
V.  Rar-wood,  7  Crunch,  Rep.  409. 


OF  EVIDENCE.  ^q 

In  the  case  of  the  bond,  the  payment  of  interest,  or  any  other       ch.  I. 
sufficient  reason  why  the  action  was  not  sooner  brought,   would  Presumptive 
be  an  answer  to   the  presumption  which  would  otherwise  arise     '^^"'*^"'^«- 
from  the  length  of  time;  but  the  mere  fact  of  the  defendant  hav-  " 

Where  the  property  of  an  insolvent  debtor  is  assigned  in  trust  for  the  benefit  of 
certain  creditors,  their  assent  to  the  assignment  will  be  presumed,  jmft7  ihey  ex- 
press their  dissent.     De  Fun'est  \.  Bacon  etal.  2  Con.  Rep.  633. 

Villa  fVilt  V  Franklin,  1  Binn.  Rep.  50ii,  whcic  the  assent  of  a  trustee  under  an 
assignment/i/r  the  benefit  of  creditors  will  be  presumed. 

For  the  effect  of  length  of  time  in  laising  a  legal  an<i  equitable  presumption  of  the 
extinguishment  of  a  trust,  payment  of  a  debi,  kc.  vide  Prevost  v.  Gratz,  6  Wheat. 
Rep.  504.    Lynde  v  Dennison,  3  Con.  Rt^p.  387. 

Presumptimis  of  a  grant  arising  trom  lapse  of  time,  are  applied  to  corporeal  as 
well  as  iiico  poreal  heieiiitamenis.     Ricard  v.  fVdliams,  7  fVheat   Rep.  59. 

Vide  Foivler  v.  Savage  et  al.  3  Con.  Rep.  90.  Les.  of  Allston  v.  Saunders,  1 
Bai)''s  Rep.  2ti.  Jackson  ex.  d  M' Donald  v.  M' Call,  10  Johns.  Rep.  377.  Sulli- 
•vunty.  Mston,'2  Hayw.  Rep.  128.  Ranks  \ .  Tucker, ibid  147    S.  C.  Tayl.Rep.  157. 

Proof  that  one  was  represented  to  be  a  deputy  sjrveyor,  and  acted  as  such,  is  evi- 
dence of  a  depuiation.     Z)eH?i  v.  Fond  et  al.  1  Coxe^s  Rep.  378 

Where  a  person  is  bound  to  do  a  ceitain  act,  the  omission  to  do  which  would  be 
a  culpable  neglect  of  duty,  the  performance  ot  it  will  be  presumed,  unless  the  con- 
trary is  proved.     Hartivell  v.  Root,  19  Johns.  Rep.  345, 

For  presumption  of  a  levy  on  an  execution,  virie  ibid. 

Proof  of  such  circumstances  which  could  not  have  existed,  unless  a  particular 
fact  hud  pre-existed  to  give  rise  to  them,  will  be  admitted  as  presumptive  tvidence 
of  such  fact.     Hopkins  v.  De  Graffenreid,  2  Bay's  Rep.  190. 

The  exposure  o(  goods  at  the  door  of  a  shop,  is  presumptive  evidence,  that  thev 
were  intend<  d  for  sale    City  Conncil  v.  Truchelet,  1    JVott  &  .,>/'  Cordis  Rep   230. 

The  copy  of  a  grant  from  the  records  certified  by  the  Secretary  of  State,  &c.  is 
evidence  sufficient  to  shew  that  an  oi'iginal  grant  once  existed  Rochell  v.  Holmes, 
2  Bay's  Rep.  487. 

The  delivery  over  of  a  note,  held  by  the  defendant  to  the  plainlifT,  furnishes  a 
conclusive  presumption  of  the  jiayment  of  it,  unless  the  manner  ol  its  coming  into 
his  possession  be  oihei  wise  accounted  for.  Roberts  v.  Stagg,  1  JVott  H^  JM'- Cord's 
Rep  430. 

Where  a  farm  had  been  occupied  for  above  eighty  years,  during  which  time  the 
tenant  and  his  descendants  uniformly  piiid  rent  to  the  landlord,  and  made  p''rrnanent 
improvements  ;  held,  thai  a  lease  in  fee  at  the  ackimwledged  rent  was  to  be  pre- 
sumed, or  that  there  was  an  agreement  for  it.  Ham  v.  Schuyler,  4  Johns.  Cha. 
Rep    1. 

Where  a  person  having  the  legal  title  to  lands,  but  in  tr'ist  foi-  the  defendant,  sold 
his  right  for  a  valuable  conside- ation  to  a  bona  fide  purchaser,  without  notice,  who 
remained  in  possessii'n  for  (  ighteen  years  before  his  death,  and  devised  ilu  same; 
held,  that  after  the  lapse  of  tliirn  >eais  from  the  date  of  the  deed,  and  no  evidence 
of  fraud,  the  devisees  of  such  jjurch  ..str  were  entitled  to  hold  the  lands  discharged 
from  thi  trust.  Coxe  v.  Smith  et  al.  4  Johns.  Cha.  Rep.  271.  Et  vide  Shaver  v. 
Radley,  ibid.  310. 

Where  there  was  a  perpetual  lease  reserving  an  annual  rent,  and  notn  had  been 
demanded  for  forlv-foiir  ye;n'S,  held,  that  th--  lapse  of  time  was  sufficient  evidence 
'.bat  it  had  been  extinguishrd.     Livingston  v.  Livingston,  ibid.  294. 

Where  more  than  twenty  years  have  elapsed,  in  an  action  for  rent  reserved  on  a 

H 


QQ  GENERAL  RULES 

Ch.T.       ing  been  in  embarrassed  circumstances  without  more,  isnotsuf- 
Presnmpiive  flcient  to  excusc  the  delay. (1)     The  fact  of  interest  having;  been 

Evid-  ni-e.  ,  •       r       •     •       i       i 

________^  paid,  would  be  sufiicientlj  proved  by  a  receipt  tor  it  in  the  hand 

(1)  Williau'iie  — ■ — 

i'vV*"'\''*oi"  lease,  since  the  last  qiiHri.i-s'  rent  became  due,  payment  will  be  presumed.    Bailey 
'v.  Jackson,  IG  Jolints.  Rep.  '210. 

VVIiere  it  was  agreed  beiwi-en  the  lessor  and  his  lessee  that  thf  latter  should  sur- 
render his  old  lense,  and  take  a  new  one,  and  a  new  one  is  accordinscly  accepted,  a 
release  of  the  (lid  oi'.e  will  be  presumed.  Springstein  v.  Schermerhorn,  V2  Johns. 
Rep.  357. 

Where  a  pai  ty  in  possessicin  is  entitled  to  a  conveyance,  under  an  agreement  or 
trust,  the  presumption  is  strong  that  a  conveyance  has  been  executed  accordi  igly. 
Jackson  ex.  d  Stovtenburgh  el  al.  v.  Murray,  7  Jolnis.  Rep.  5.  Et  vide  Van  Dyck, 
V.  Van  Beiiren,  1  Caines''  Rep.  84. 

A  conveyance  from  trustees  to  cestiiy  que  trust,  has  been  presumed  in  much  less 
than  twenty  years.  Engiand  ex.  d.  Syburn,  v.  Slade,  4  T.  Rep.  682. 11  Johns.  Rep. 
456. 

When  a  re-cnnveyance  will  be  presumed,  vide   Rigger's  adins.  v.   Aldei^son, 

1  H.  &  Mnnf.  Hep.  54. 

A  grant  ma)  be  presiimetl,  from  oreat  length  of  possession,  although  no  privity 
can  be  traced  between  the  successive  tenants.  Herring  v.  Wiggs,  JV.  Carolina 
Term  Rep.  .34. 

What  circumstances  will  justify  the  presumption  of  a  deed,  is  matter  of  law. 
Stoeverv.  I^es.   of  IVitnum,  6  Binn.  Rep.  416.    Et  vide  Sumner  et  al.  v.   Cldld, 

2  Con.  Rep.  607. 

On  a  trial  by  jury,  if  the  evidence  adduced  does  not  appear  on  the  record,  all  will 
be  prcsuTiieo  legal  ami  right.  Ford  v.  Gardner,  1  Hen.  &  Mnnf.  Rep.  72. 

Lapse  of  time  is  permitted  in  equity,  to  defeat  an  acknowledged  right,  on  the 
ground  ol  the  presumption  that  ii  has  been  abandoned.  JVelson  v.  Carrington,  4 
Jftinf.  Rep.  332. 

After  a  great  lapse  of  time  and  death  of  the  parties,  a  bill  in  Chancery  was  dis- 
missed, the  Court  considering  it  a  stale  demand.  Ray  v.  Bogart,  2  Johns.  Cas.  in 
Er.  432. 

So  in  Chancery  an  account  of  stale  transactions  will  be  refused.  Ra7idolph\.  Raiv- 
dolph,  2  CalPs  Rep  537. 

Stale  redemptions  have  been  denied  after  forty  years.  White  v.  Ewer,  2  Ventris 
Rep.  340. 

If  the  party  claims  under  an  escheat  grant,  lie  must  prove  the  tenant  died  without 
1  heirs;  and  ii  will  not  be  presumed  he  did  so  die,  although  he  had  been  absent  be- 

yond seas  for  seven  years.  Hutchins''s  les.  v.  Eriekson,  \  H.&  jM'Hen.  Rep.  339. 

Ignorance  in  the  family  of  the  existence  oi  one  of  "he  children,  who  had  gone 
abroad  at  the  age  of  twenty -two  years,  unmarried,  and  had  not  been  heard  of  for  up- 
wards of  forty  years,  is  sufficient,  with  other  circumstances,  to  warrant  the  presump- 
tion of  his  death  xoitliout  tsstie.  JW  Comb  v.  Ogilvie,  5  Johns.  Cha.  Rep.  263. 

A  nienioraniium  of  an  agreement  for  the  sale  of  lands,  is  eviJence  of  an  unity  of 
title  to  such  and  every  part  thereof,  and  after  a  long  and  undisturbed  possession  of 
part  by  the  vendee  mentioned  in  such  memorandum,  the  Court  will  presume  a  deed 
conformably  thereto    Jackson  ex.  d.  Kip  v.  Murray,  Anth.  JV.  P.  Cas.  75. 

Where  a  claim  set  up  by  a  third  person  to  a  warrant  and  survey,  remains  undis- 
puted for  the  space  of  between  thirty  and  forty  years,  aiid  there  is  nothing  to  sliewr 
that  the  wariantee  has  tiansferred  his  title  to  any  one  else,  it  is  strong  evidence  to 
prove  that  the  right  of  the  warrantee  vested  in  the  claimant  by  some  conveyance 
which  is  lost.  Les.  of  Galloway  v.  Ogle,  2  Binn,  Rep.  468. 


OF  EVIDENCE.  cj 

writing  of  the  creditor  himself  endorsed  on  the  bond,  before  the      ch.  i. 
time  when  the  presumption  was  likely  to  arise,  because  then  he  P'esumptive 
had  no  interest  in  making  such  endorsement  ;(l)but  if  made  af-       ^"*""ce. 
ter  that  time,  it  would  be  no  evidence. (2)  (a)  ,7TT! 

^    '^^-''^  (l)Sea<le  ■u. 

IjOiiI  Bariing- 

ton,-|-  '2  Stra. 

A  grant  of  lands  conferring  an  enlire  title,  cannot  be  presumed  from   possession,,/"       i  oi?5 
and  length  of  time  alone.  Srimner  et  ul.  \   C/iikl,2Con   Hep.  607.  s'c         "^     * 

A  deed  from  a  parent   to  Ins  child,  in  consideiation  of  love  and  affi-clion,  is  pre-  (8  iVIod.  Rep, 
suroi'd  to  be  an  advancement.  Batch  et  al.  v.  Straight,  3  Con.  Rep.  31.  278.     3  Bro. 

All  papers  found  amo.ig  thr  office  pipers  of  a  deputy  surveyor,  niaj  be  fairly  pre-  '    ^-  '^^"^- — 
sumed  to  lie  official  (unless  the  contrary  appi-ar)  provided  that  there  were  any  or-        '        •> 
ders  in  his  hands,  to  ihe  execution   of  which  iln    papers  in  question  might  relate,  ("2)  Turner 
Miller  etal.  v.  Carothers  et  al  6  Serg.  &R.  Rep.  215.  v.  Crisp, 

The  receipt  given  by  counsel  for  a  boiid,  was  allowed  in  evidence  to  prove  the  ^  Stra.  827. 
time  the  bond  was  delivered  to  him.     Alston  v.  Taylor,  1  Hayiu.  Rep.  39.'5.  Vide  Wash- 

When  i':groes  are  presumed  slaves  in    Virginia.     Vidi-  Hadgins  \.    fVrights,  1  r>p  '  » 

Hen.  &  Munf.  Rep.  133.     Hook  v.  Pngee,  '2  Munf.  Rep.  379.    Mrukum  et  al.  v.  pemli'x'''     ^' 
Matthews,  6  Do.  159.  (Rose  adra.  v. 

In  jy.  Carolina.     Vide  Gohisv.  Gobiis,  Tayl.  Rep.  104.  Bryant, 

A  presumption  from  lapse  of  time,  of  pa)  inent  or  performance,  will  not  affi:-ci  'jo  '*"'^*  ^P' 
the  rights  of  those  to  whom  no  laches  is  imputable.  Lynde  v.  Uenison,  3  Con,  Rep.  {?„  "\ 
387.  ■'' 

What  presumption  arises  from  the  endorsement  of  a  note.  W\.\t  Brunster  v. 
Dana,  1  Root.  Rep.  266.     IVadhum  v   Vanderiuooken,  ibid.  385. 

After  twenty  years  acquiescence  by  the  heirs  of  an  intestate,  in  the  possession  of 
the  real  estate  of  their  ancestor,  holden  under  a  sale  by  the  administrator,  the  Court 
■will  presUMif  iha*.  the  administrator  took  the  oath,  and  posted  the  notifications  ac- 
cording to  law,  previous  to  the  sale.     Gray  v,  Gardner,  3  Mass.  Rep.  399. 

Wlien  a  nei^ociable  note  is  given  for  a  subsisting  debt  by  simple  contract,  the 
presumption  of  law  is,  that  it  was  received  in  payment  of  such  debt ;  but  this  may 
be  controlled  by  the  agreement  of  the  parties.     Manecly  M^Gee  et  al.  6  Do.  143. 

After  a  lapse  of  more  than  seventy  years,  without  any  adverse  claim,  the  jury 
may  presume  a  grant  from  the  original  proprietor  of  a  share  in  a  township  of  land 
to  a  person,  afterwards  acting  as  grantee  of  such  share,  sustaining  various  offices  as 
such  in  the  corporation  of  proprietors,  and  paying  taxes  thereon  ;  although  the  land 
be  not  holden  by  any  visible  possession.  Farrer  et  al.  v.  Merrill,  I  Greenl  Rep.  17, 

But  a  general  usage  like  that  of  depositing  lumber  on  the  baijks  of  a  river,  not  ac- 
companied  by  a  claim  of  possession,  nor  an  occupancy  tothe  exclusion  of  the  owner's 
rights,  cannot  furnish  any  legal  presumption  of  a  grant.  Bethuin  v.  Turner,  ibidi 
109.— Am,  Ed. 

{q)  The  Courts  oi Pennsylvania  have  adopted  the  English  rule,  that  after  a  cer- 
tain length  of  time,  a  debt  en  bond  will  be  presumed  to  have  been  discharged,  un- 
less the  delay  can  be  accounted  for.  Penrose  et  ul.  v.  King,  1  Feates'  Rep.  344. 
So  in  Kentucky,  Shields  v.  Pringle,  2  Bibb's  Rep.  387  These  presumptions  are 
as  ninch  allowed  in  a  Court  of  Equity  as  of  Law.  Giles  v.  Baremore,  5  Johns.  Cha. 
Rep   545. 

A  laps!   of  twenty  years  creates  a  presumption  of  payment,  if  no  interest  has  been    - 
paid  in  the  mean  time;  but  if  the  period  be  shorter  than  twenty  years,  the  presump- 
tion  must  be  supported  by  circnmstaiic  s.     Gouldhuwk  v.  Duane,  C.    C.  Jipril, 

\  Vide  the  observaiir.Ms  of  Spknceii  C.  J.  in  the  case  oi Rnseboom  v.  BilUngton, 
17  Johns.  Rep.  184,  upon  this  case. — Am.  Ed, 


.    f 

Q2  GENERAL  RULES 

Ch.  L  Having  thus  stated  the  general  rules  applicable  to  every  spe- 

Presumptive  ^ipg  „f  evideiil'e,  as  well  written  as  parol,  I  shall   now  proceed 

Evidenc  .  .  .  '  .  ,  .  *^ 

^^^^^    to  give  them  a  distinct  and  separate  consideration. 


1809,  .1/.  S.  Rep.  Cottle  V.  Ptnj'ie,  3  Bcufs  fle/j.  289.  Bailey  v.  Jackson,  16 
Johns.  Rep.  21U  Dunlop  v.  Ball,  2  Cranch's  Rep.  180.  Higginson  v,  Mein,  4 
Ci^anch's  Rep  415. 

But  i'l  an  action  tried  in  1794,  the  Court  ruled  that  the  perioil  between  1776  and 
1784,  during  which  the  Limitation  Act  had  been  suspt-iided,  ought  to  be  thrown  out 
of  thf  ealcuimion.     Penrose  et  al.  v.  King,  1  Yeates''  Rep.SH. 

A  lapse  ot  eisjhfeen  years  and  a  lialf,  was  rul-  dnot  to  be  sufficient  to  found  a  pre- 
sumptiou  of  paymrnt  of  a  bond,  under  circumstances  that  tended  to  repel  the  pre- 
sumption. Boltz  et  al.  V.  Ballman,  1  Yeates'  Rep.  584.  Sed  vide  Dehnrt  v.  Gard, 
Mdis.  Rep.  344. 

The  law  does  not  positively  presume  payment  of  a  judgment,  after  nineteen  years; 
that  is  a  question  for  the  jury.     Leslie  v.  .N'ones,  7  Seig.  &  R.  Rep.  410. 

In  j\'e~M  York,  a  bond  will  he  presumed  paid  after  eighteen  oi'  twenty  years. 
E.Trs.  of  Clark  v  Tlopkins,  7  Johns.  Rep.  .556.  And  to  rebut  that  presumption,  the 
obligee  ouirht  to  shew  a  demand  of  payment,  and  ar.  acknowledgment  of  the  debt 
within  thai  time.  ibid. 

But  it  must  be  exclusive  of  a  period  of  confusion,  like  the  revolutionary  war. 
Jackson  ex.  d.  I'Jir  People  v.  Pierce,  10  .Johns.  Rep.  417.  Higginson  v.  j[Iein,  4 
Crii?ich''s  Rep.  415.  Breivton''s  exrs.  \.  Cannon''s  exrs.  1  Bay's  Rep.  483.  Et  vide 
Qui?ice's^  adms.  v.  Ross's  udms,  Tayl.  Rep.  155.  Dunlop  v.  Ball,  2  Cranch's  Rep. 
180. 

Where  the  mortjjagee  has  never  entered  into  possession  of  the  mortsaged  premises, 
and  no  demand  has  been  made,  or  interest  jiaid  for-  twenty  years,  the  mortgage  will 
be  presumed  to  be  satisfied.  Jackson  ex  d.  The  People  v.  Wood,  12  Johns.  Rep. 
242.  Et  vide  Jackson  ex  d.  The  People  v.  Pierce,  10  Do.  414.  Bnine  et  al.  v. 
Wokott,  2  Coil.  Rep  '2.7.  Higgimon  v.  JMein,  4  Cranch's  Rep.  415.  After  nine- 
teen years  it  was  allowed.  Jackson  ex.  d.  JMartin  et  al.  v.  Pratt,  10  Johns.  Rep. 
381 .     Ross  V.  A'orvall,  1  n'ash.  Rep.  18. 

The  payment  of  interest,  a  demand,  or  the  obligee  being  an  alien  enemy,  repel 
the  presumption  of  the  payment  of  a  bond  of  more  than  twenty  years  standing, 
Rearden  v.  Searcy's  heirs,  3  JMarsliall's  Rep.  544.  S.  C  1  IaI.  Rep.  53. 

So  a  patent  of  land  from  the  Slate,  has  been  presumed  after  a  length  of  posses- 
sion  Jlrcher  v.  Sadler.  -2  H.  &  Aliir.f.  Rep.  370.  ffariks  v.  Tucker,  Tayl.  Rep. 
157    Et  vide  Les.  ofAhton  v.  Smuideis,  1  Bay's  Rep.  26. 

In  A'ew  York  it  has  been  held,  that  acknowledging  a  bond  and  apologising  for  the 
non  payment  of  it,  will  destroy  Uw  presumption  ai-ising  from  the  non  payment  of  in- 
terest for  twenty-five  years.     Sinodes  v.  Hooghtaliiig,  3  Cuines'  Rep.  48. 

A  presumption  in  law  arises  from  the  payment  of  the  last  instalment  upon  a  bond 
that  the  preceding  ones  have  been  paid,  provided  it  has  been  made  in  the  manner 
and  at  the  rime  contemplated  by  the  parties.  Wardy.  Green's  adms.  ^  Carolina 
La-.u  Repos.  108. 

An  entry  made  nineteen  years  before  in  the  books  of  the  defendant's  testator,  that 
a  promissory  note  of  twenty-three  years  standing  was  paid,  was  allowed  to  be  read 
to  support  the  presumption  of  payment.   Rodman  v.  Iloope's  exrs.  1  Dall.  Rep.  35. 

There  is  a  Statute  in  Connecticnt  limiting  tlie  payment  of  bonds  and  notes  to 
seventeen  ye-r.rs 

Neither  an  endorsement  nor  payment  on  a  bond  will  save  it  from  tlie  Statute. 
Gates  V.  Brattle.  1  Roots's  Rep.  187.  Fvller  v.  Hancock,  ibid.  238. 

Great  length  of  time  will  induce  a  presumption  of  payment  of  a  note.  Perkins  v. 
Kent,  ibid.  312. 

But  the  presumption  of  payment  may  be  met  by  circumstances,  which  account 


OF  EVIDENCE. 


53 


for  the  delay  in  bringing  suit.  Higginsonw.  Mein,^  Cranch's  Rep.  420.    Levg  y.      chao  I 
Ham/non,  1  J/' Conrs  R^p.  145.  PresumptiTe 

An   eiidorsLinent  on   a  bond  or  note  made  by  the  obligee  or  promisee,  ■without      Evidence. 

the  privity  ot"  the  obligor  or   promissor,  is  not  admissible  evidence  of  a  payment  in  

favour  of  the  party  making  the  endorsement,  so  as  to  repel  the  presumption  of  pay- 
ment arising  from  the  lapst-  of  years,  or  to  take  the  case  out  of  the  Statute  ot  Limi- 
tations;  unless  it  be  first  shewn  that  the  endorsement  was  made  at  the  time  of  its 
date,  or  when  its  operation  would  be  against  the  interest  of  the  party  making  it,  and 
then  on  such  proof  being  given,  it  is  good  evidence  to  go  to  a  jury.  Roseboom  v.  Bil' 
Ungtnn,  17  Johns.  Rep.  182. 

Where  no  time  is  limited  by  law  for  the  payment  of  a  demand,  length  of  time 
will  raise  a  presumption  of  payment.   Aiion.  1  Hayw.  Rep.  459. 

In  case  of  a  bond,  twenty  years  will  raise  the  presumption.  Qitmcc's  adms,  v. 
Ross's  adms.  2  Do.  180.  S.  C.  Taijl.  Rep.  155, 

Length  of  lime  affords  a  presumption  of  payment  in  favour  of  a  garnishee,  and  no 
intermgaiory  shall  be  put  to  him,  eliciting  an  answer,  to  deprive  him  of  such  a  de- 
fence.  Gee  V.  TVanuick,  2  ffaipu.  Rep.  358. 

Quere,  Whether  twenty  years  be  the  exact  limit  of  time  to  commence  a  presutnp.    - 
tion  of  payment  of  a  bond,  and  if  fifteen  or  si.xteen  years  would  be  sufficient.    Shop- 
pavd's  exrs.  v.  Cook's  exrs.  ibid.  238. 

The  Act  of  Limitation  does  not  begin  to  operate  until  thee.\piration  of  the  timeli- 
mited  for  the  payment  of  the  money  secured  to  be  paid  by  the  bond.  Glashovj''r 
adms.  V.  Porter  et  al.  1  Har.  &  Johns.  Rep.  109.— Am.  Ed. 


CHAP.  II. 


OF  WRITTEN   EVIDENCE. 


Written  evidence  has  been  divided  by  Lord  Chief  Baron 
Gilbert  into  two  classes;  the  one  that  which  hpublic,t[\e  other 
private ;  and  this  first  has  been  again  subdivided  into  matters  of 
record,  and  others  of  an  inferior  nature.  I  shall  follow  these 
divisions,  and  treat  of  each  in  its  order. 


SECTION  I, 

Of  Records. 

Chap.  II.  s.  1.     The  memorials  of  the  Legislature,  such  as  Acts  of  Parlia- 
and  A™c!s  of     ^^^t,*  (o)  and  judgments  of  the  King's  superior  Courts  of  Jus- 

Parliament.      _______^ 


"~*  •  Of  Acts  of  Parliamt-nt  the  law  makes  a  distinction  between  those  which  are 
public,  as  concerning  the  realm,  all  spiritual  persons,  all  offices,  and  the  lik'  ,  and 
those  which  settle  the  private  rights  ol  individuals  or  particuUr  places,  and  which 
are  theiefore  called  private  Th»'  former  are  not,  coriectly  speaking,  thr  subject 
of  proof  in  any  Court  of  .Justice,  for,  being  the  law  of  the  land,  they  are  supposed  to 
be  known  to  every  man  ;  and  therefore  the  printed  Statu! e  Book  is,  on  all  occasions, 
referrt-d  to,  not  as  evidence  to  prove  that  of  which  every  man  is  presuuied  to  be  co- 
nusant ;  but  for  the  purpose  of  refreshing  the  memories  of  those  who  i^re  to  decide 
upon  ihem.  But  private  Acts  of  Paiiiameut,  not  concerning  the  public,  are  not 
considered  as  laius,  hutjiicts,  and  therefore  must  be  proved  like  other  records  which 
concern  private  rights,  by  copies  from  the  Parliaiuent  Rolls;  foi  thi  printed  Sta- 
tutes are,  in  this  respect,  only  private  copies,  and  consequently  no  evidence  o!  the 
fact.  In  one  case  Lord  C.  B.  Paiikkr  permitted  the  printed  Staluie  touching  the 
College  of  Physicians,  whicti  is  a  private  Act,  lo  be  read  in  evidence  from  the  Sta- 
tute Book  printed  by  the  King's  printer  ;  but  the  general,  indeed  universal  prnctice, 
is  to  prove  examined  copies.  Vide  Gilb.  Laiu.  Ev.  10.13.  Toprevtnt  luis  in- 
convenience, the  Legislature  frequenily  declares,  thai  acts  m  their  nature  private, 
shall  be  deemed  public,  which  enables  Judges  to  consider  them  as  laws,  and  thereby 
prevents  the  necessity  of  evidence  to  prive,  or  special  pleading  to  introduce  them 
to  the  notice  of  a  Court  of  Justice;  and  v»iili  ilie  like  view  the  Statute  49  Geo.  S,c  90 
«.  9,  enacts,  that  copies  of  the  Statutes  of  Gre«<  Britaiu'And  /rete«(/prior  to  the  union 
of  those  countries,  printed  by  the  printer  duly  authorised,  sha.l  be  received  as  con- 
clusive evidence  of  the  several  Statutes  in  either  kingdom.  For  particular  in- 
stances of  what  laws  are  considered  as  public,  and  what  otherv?ise,  vide  jBul  J^T.P. 
223,  &c. 

(«)  A  printed  pamphlet,  containing  Legislative  Acts  not  antlientitated  bv  the 
seal  of  the  State,  is  not  evidence  in  any  Other  State,  under  the  Act  of  Congress^ 
Craig  V.  Bvovin,  1  Peters'"  Rep.  352. 


RECORDS. 


55 


tice  are  denominated  records,{b)   and   are   so  respected  by  the  cimp.  II.  s.  i. 

Jii()(;iuents 
anil  \cls  of 
Parlianii;nt. 


law  that  no  evidence  whatever  can  be  received  in  contradiction  J "''s'lpnts 

'  anil  \cls  of 


A  copy  of  an  Act  of  Assembly  of  anoliier  State,  contained  witli  othf  r  Acts  in  a  " 
pamnliiet,  pii<,ti'<l  by  the  printers  of  tbe  Cixiiinonwealtb,  was  held  to  br*  good  evi- 
dence. Thompson  v.  Musser,  1  fJall.  Rep.  4fi'2.    S.  P.  Biddis  v.  James,  6  jBinn, 
Hep.  321.      ontia,  Commonwealth  v.  Fratier,  Oyer  and  Term.  1813,  citeti,  ibid. 

Copic.' ot  the  laws  of  Pe/iMSf/ZTifim'a,  printed  b)  the  autboiity  of  the  Legislitnre, 
are  t  vidince  in  ihis  State,  whether  tho  laws  be  public  or  private.    Biddis  v.  James, 

0  Bmn   liep.  3'21. 

The  written  or  Statute  laws  of  foreign  countries,  must  be  proved  by  the  laws 
theniselvts  ifthiv  c;iii  be  procured,  if  not,  inferior  evidence  may  be  received.  Un- 
written laws  or  usages  may  b<'  proved  by  parol  evidence,  and  when  proved,  it  is  for 
the  Coui  t  to  consnue  them  and  decide  upon  their  effect.   Consequa  v.  Willing  et  al. 

1  Peters'  Rep.  '229.  Seton  v.  Del.  Ins.  Co.  C  C.  April,  1808,  M.  S.  Rep    Robin- 
son V    Clifford,  C.  C.  April,  18U7.  ibid. 

The  prmted  Statute  book,  containing  a  private  Act,  may  be  given  in  evidence 
against  the  party  for  whose  benefit  it  was  passed.  Duncanv.  Dubois,  3  Johns.  Cas. 
125. 

The  only  evidence  of  a  private  Act,  is  the  exemplification  of  it.  Per  Sedgwick..  J, 
The  Prop,  of  Ken.  Purchase  v.  Call,  1  Mass.  Rep.  433. 

The  primed  book  of  the  printers  to  the  General  Court,  is  evidence  of  public  Acts, 
ibid. 

Marine  ordinances  of  foreign  countries  promulgated  by  the  Executive,  by  order 
of  the  Legislaturt  of  the  U.  States,  maybe  read  in  their  Courts  without  further 
proof  of  authentication.   Talbot  \   Seeman,  1   Crunch's  Rep.  1. 

A  writing  purporting  to  be  a  judicial  proceeding,  authenticated  under  a  national 
seal,  will  be  taken  notice  of  judicially,  in  other  Stales,  as  having  the  highest  evi- 
dencf^  of  authenticity.   Grisivoldet  al.y.  Pitcairn,2  Con,  Rep.  S5. 

In  Connecticut,  H  hook  ofth"  Statutes  of  JVew  York,  printed  by  a /jn-jya^e  printer, 
■was  refused  as  evidence.  Bostivich  \.  Bogardus,^  Roofs  Rep.'250.  S.  P.  Canfeld 
■V.  Squire,  ibid.  300. 

The  Court  are  not  held  judicially  and  ex  officio  to  notice  a  private  Act  of  the  Ge- 
neral Assembly.  Pearl  \.  Allen, 'iTyl.  Rep.  311. 

Private  Acts  of  \ssemblymust  be  exhibited  as  documents,  if  they  are  not  pleaded. 
Legrand  v.  Hampt.  Sid.  College,  5  Munf.  Rep.  324. 

The  laws  of  a  sister  State  must  be  pleaded.  Beauchamp  v.  Madd,  Hardin's  Rep. 
165. 

An  Act  of  the  Legislature  of  Virginia,  certified  by  the  clerk  of  the  House  of  Dele- 
gates, not  evidence.  Ellmorev.  jytills,  1  Hayw.  Rep.  360. 

But  a  printed  Statute  book  of  the  laws  of  Virginia,  were  received  in  evidence. 
Poi7idext«r  v.  Barker,  2  Do.  173. 

Quere,  Whether  private  Acts  of  Assembly  <if  Virginia,  printed  by  the  public 
printer  of  that  State,  under  the  aiilhonty  of  law,  may  be  read  in  evidence  without 
other  authentication.  Young  v.  Bank  of  Alexandi-ia,  4  Cranch's  /?e/).  384. — Am. 
Ed. 

(6)  No  proceeding  is  regarded  as  matter  of  record,  until  it  is  enrolled.  Croswell 
V.  Byrnes,  9  Johns.  Rep.  287. 

It  seems  that  the  books  of  the  Land  office,  and  of  the  Koard  of  Property,  are  re- 
cords. Ream  v.  The  Commonwealth,  3  .S'*'''^  £^  R-  Rep.  -207. 

Where  the  defendant  gave  in  evidence  the  record  of  a  trial  and  judpment  thirty- 
six  years  back,  and  the  plaintiff  offered  a  witness  to  prove  tliat  the  testimony  now 
given  was  then  produced,  it  was  ruled  the  witness  wns  not  admissible  alter  so 
great  a  length  of  time.  Leech  v.  Arinitage,  2  Ball.  Rep.  125,  S.  C.  I  YecUea'Rep,  104. 


55  RECORDS. 

Chap.  11.  s.  1.  of  them  ;*  but  being  the  precedents  of  the  law  to  which  every 
Judgments      man  has  a  right  to  have  recourse,  thej  are  not  permitted  to  be 

and  Acts  of 

Parliament. 

■  In  HenneR  v.  Lyon  adm.  i  B.  &  Aid.  Rep.  182,  the  copy  of  a  bill  and  answer  by  a 

Gilb.Law.  Ev.P*^'"^""  of  the  same  name,  and  sustaining  the  sarat;  character,  were  given  in  evidence, 
7  Coke  Lit.  Proceedings  of  a  Justices'  Court,  though  not  technically  a  record,  are  in  the  nature 
182,  a.  of  it.  Posson  v.  Broivn,  11  Johns.  Rep.  166. 

The  original  files  of  the  Count)  Cuurt,  wiih  the  clerk's  certificate,  was  read  ia 
evidence    Mis  \.  Beedle,  1  Tyl.  Rep.  179. 

Where  ih"  rtcoid  of  a  ju<lgm'  tit  is  of  a  term  generally,  and  it  becomes  material 
to  the  rights  of  the  parties  lo  ascertain  the  pa' licular  day  on  which  it  was  rendered, 
it  may  be  shewn  by  evidi-nce  aliunde.     Young  v.  Kenyan,  2  Day  s  Rep.  25'i. 

Queie,  Whether  a  pa[)er  filed  by  one  party,  offering  to  be  bnniul  by  certain  terms, 
if  the  \erdict  shouW  be  in  his  favour,  but  not  accepted  by  the  other  party,  can  be  no- 
ticed, as  part  of  the  record,  by  a  Court  of  Error.  Bower  v.  Blessing,  8  Serg.  & 
R.  Rep.  243. 

•  By  the  practice  of  the  Cnnrts  at  Westminster,  all  writs  issued  in  vacation,  are 
tested  as  of  a  day  in  the  preceding  term  ;  and  when  an  issue  is  made  up  in  a  pro- 
ceeding bv  bill,  the  plaintiff  IS  stated  to  have  brought  his  bill  into  Court  on  the  first 
day  of  the  term,  or  of  the  term  generally,  which  signifies  the  same  thing.  It  was, 
for  some  time,  doubted  whtther  the  parties  were  not  estopped  by  this  fiction,  from 
shewing  the  exact  day  \»lien  the  suit  was  commenced  ;  but  it  was  afterwai-ds  deter- 
mined, that  where  it  became  necessary  for  the  purposes  ofjustice,  to  shew  the  day 
when  the  writ  in  fact  issued,  either  party  might  do  so  ;  and  therefore,  wherever  the 
defendant  pleads  a  tender  before  the  exhibiting  of  the  bill,  or  that  he  did  not  pro- 
mise within  six  years  next  before  that  time,  the  plaintiff  may  set  forth  in  his  repli- 
cation the  day  on  which  the  writ  was  sued  out,  and  state  that  the  tender  was  not 
made  before  that  day,  or  that  the  defendant  promised  within  six  years  before  it;  and 
in  like  manner,  if  the  plaintiff's  cause  of  action  accrue  w  ithin  the  term,  the  day  may 
be  proved,  by  the  production  ol  the  writ  Ij\  the  pf  lintiff,  or  a  copy  of  the  pnecipe, 
after  notice  to  produce  it,  by  the  difendant.  Vide  .Tohnaon  v.  Smith, ^2  Burr.  950, 
JMorris  v.  Pugh,  3  Burr.  1241.  But,  in  general,  the  filing  of  the  bill  is  considered 
as  the  commencement  of  the  suit,  and  therefore  the  plaintiff  may  give  evidence  of 
any  cause  of  action  arising  before  it,  though  after  the  writ  sued  out.  Foster  v. 
Bonner,  Cowp.  454;  and  this  is  bailable  as  well  as  other  actions.  Bestv.  Wilding, 
7  T.  Rep.  4.t 

An  officer,  whose  business  it  is  to  keep  the  records,  may  be  examined  as  to  the 
condition  of  them,  but  not  as  to  the  matter  of  the  record.  Leighton  v.  Leighton, 
1  Stra.  210.  And  if  words  have  been  struck  out,  which  render  a  record  erroneous, 
witnesses  niay  be  examined  to  shew  that  such  wortls  were  improperly  struck  out; 
but  not  to  falsify  the  record,  by  shewing  that  an  alteration,  whereby  the  record  was 
made  correct,  was  improperly  made.  Dickson  v.  Fisher,  1  Black.  664,  4  Burr. 
2267,  S.  C.+ 

■(■  The  original  endorsement  on  a  writ  and  not  the  entry  in  the  Sheriff's  book,  is 
the  best  evidt  nee  to  prove  when  an  action  was  commenced.  Read  v.  Colcork,  4 
JVoK  &  M'  Cord's  Rep   592.  Vide  Knox  v.  Commoniieulth,  3  Bibb's  Rep.  357. 

An  entry  on  the  recr)rd  of  the  issuina;  of  a  writ,  does  not  estop  the  party  from  de- 
nying the  fact  ;  it  shall  he  tried  per  pais,  and  the  record  is  not  conclusive,  but  only 
evidence,     Bro~Mn\.  Van  Deuzen,  10  Johns.  Rep.  51. — Am.  Eu. 

i  The  endorsement  of  the  clerk  of  the  enrolments  of  the  day  of  the  enrolment,  by 
way  of  dat'  ,  is  part  of  the  n  cortl.  and  cannot  he  averred  ;igainst,  nor  is  evidence  ad- 
missible to  shew  that  it  w  s  a  fact  enrolled  on  some  other  day  ;  and  this,  although 
the  dale  be  written  on  an  erasure.  Read  v.  Hooper,  Z  Price,  Ex.  Rep.  495.— Am. 
Ed. 


RECORDS.  M 

removed  from  place  to  place  to  serve  a  private   purpose  ;   andchap  n.  s.  i, 

are  therefore  proved  by  copies  of  them,  which  in  the  absence  of  ^''''^'"P''fi- 
.  .,.,  1  ■!  A\  call.  IS  and 

the  original,  is  the  next  best  evidence.(c;  Swom Copies. 

These  copies  are  of  three  kinds  ;  1st.  Such  as  are  exemplified  — 

under  the  great  or  broad  seal,  wliich  by  virtue  of  that  seal,  be- '■.i"j;Law.Ev. 
come  themselves  records,*  and  can   only  be   of  proceedings  in     '  "^ 
the  Court  of  Chancery,  or  those  of  the  other  Courts  returned 
there  by  certiorari.{d) 

(c)  The  law  will  not  allow  an  ave  mem  against  a  record.  Commonivealth  v. 
Chnrchill,  5  Mass.  Rep.  174.  Whiting y.  Cochran,^  Do.  532.  Wright  \ . Mott et  al. 
Kirb  Hep.  153.  Witter  v  Brewster,  ihid.  4'2'i.  Butler  v.  Butler,  1  Boot'.-i  Rep. 
275.  Bush  v.  Byvanks,  ibid.  248.  //ostler  v.  Scvll,  2  Bo.  180 

Nothinu;  can  be  proved  l>v  parol  nidence,  which  ought  to  be  ptoved  hy  record, 
Pitts  V.  Clark,  2  Root's  Rep.  221 . 

Parol  evidence  of  a  j'ldgrnent  will  not  be  received,  the  recoid  or  a  copy  thereof 
must  be  produced.   Thompson  v.  Bullock,  1  Bail's  Rep.  366. 

The  rtport  of  a  comraiitte  on  a  bill  in  Chancery,  when  accepted,  becomes  part  of 
the  record.   Gaylord  v    Couch,  4  Day's  Rep.  374. 

If  an  attorney's  name  appears  for  a  party  on  record,  it  cannot  be  denied.  1  Tijh 
Rep.  304. 

A  record  is  notice  to  all  persons  whom  it  may  concern.  Ld.  Proprietary  v.  Jen- 
nings, 1  //ar.  &  M'//en   Rep.  145. 

An  evident  mistake  of  the  clerk  in  making  out  a  rule  of  reference,  may  be 
amended.   Tetter  v.  Rapesnyder,  1  Ball.  Rep.  293. 

A  clerical  error  may  be  amended,  even  in  a  criminal  case.  Sharffv.  Common' 
■wealth,  2  Binn.  Rep.  514. 

So  m  actions  on  penal  Statutes.    Loxu  qui  tam.  &c.  v.  Little,  17  Johns.  Rep.  346, 

After  error  brought,  the  Court,  where  the  record  remains,  may  ordi-r  an  amend- 
ment on  proper  grounds.  Prevost  v.  JVichols,  4  Yeates""  Rep.  479.  Berryhill  v. 
Wells,  5  Birm.  Rep.  CO. 

A  void  writ  cannot  be  amended.   Burk  v.  Barnard,  4  .Tohns.  Rep.  309. 

A  justice's  return  may  be  amended  after  errors  assigned,  argument  and  judgment 
thereon,  if  it  appear  by  affidavit  to  be  a  clerical  mistake.  Day  v.  Wilber,  2  dunes' 
Rep.  134.  Vide  Schooiimaker  v.  Trans,  2  Do.  HO.  Moore  v.  Bacon,  3  Do.  83. 
Sed  vide  Fooiv.  Cady,  I  Root.  Rep.  173. 

A  ca.  sa.  on  which  defendaat  was  taken,  was  allowed  to  be  amended  by  adding 
the  testatum  clause.  M'/ritire  v.  Ro-wan,  3  Johns.  Rep.  144.  Branson  etal.  v.  Earl, 
17  Do.  63. 

A  clerical  error  may  be  amended.  Gordon  v.  Frazier  et  al.  2  Wash.  Rep.  168. 
Vide  Wren  v.  Thompson  et  al.  4  Munf.  Rep.  377.  Gano  v.  Slaughter,  //ard.  Rep, 
76.  JW'  Clelland  v    Common-wealth,  ibid.  290.  Adams  v.  Bradshaw,  ibid.  555. 

If  an  entry  has  been  made  by  mist;<kf,  on  the  record,  on  motion,  the  Court  will 
correct  it.  Marr's  adms.  v.  Miller's  exrs.  1  //en.  &  Munf.  Rep.  204. — Am.  Ed, 

•  Jjetters  /!»a<e?i/ being  under  the  great  seal  are  also  matters  of  record,  and  are 
therefore  read  without  further  proof;  and  by  Stat.  3  £i?  4  Ediv.  6,  c.  4,  and  13  Eliz. 
c.  6,  \)atentef  s,  and  all  claiming  under  them,  may  make  title,  bv  shewing  the  ex- 
emplification orcoiistnt  of  the  roll.  These  Statutes  have  been  he'fl  to  extend  to  all 
the  King's  putt  nts  which  concern  lands,  pt  ivilege,  or  other  thing  granted  to  a  sub- 
ject, corporation,  or  any  other.     Page's  Case,  5  Co.  Rep.  53. 

{d)  Where  the  Gr-  ^'t  Seal  of  ■'.  S  ate  is  affi.x.  il  to  an  :  .vemplification  of  an  Act  of  the 
Legislature,  the  attestation  of  a  public  officer  is  not  required  under  the  Act  of  1790- 


58  RECORDS. 

Chap.  II.  s.  1.     Sdly.  An  exemplification  under  the  seal  of  the  Court,  in  which 

SrS      the  proceedings  are: 

Sworn  Copies.     Or,  lastlj,  a  copy  examined  with  the  original  by  a  witness, 

'  and  proved  by  him  on  oath.  As  to  the  mode  of  examination,  a  dis- 

Roife  V.  Dort,^ip(.^jyjj  j^g^g  jjeen  taken  between  an  examination  by  the  witness, 
iJ  Taunt.  d2.  .  -^ 

assisted  by  the  officer  having  the  custody  of  the  original  record, 

and  an  examination  between  two  strangers.    In  the  former  case 

it  is  sufficient  for  the  witness  to  prove  that  the  paper  offered  in 

evidence  agrees  with  what  the  officer  read  as  the  contents  of  the 

record ;  but  in  the  other  case,  the  two  persons  examining  should 

change  papers  and   read   them  alternately,  so  that  the  witness 

may  be  certain  that  the  original  was  truly  read  to  him,  which 

the  Court  will  not  presume  to  be  the  case,  when  the  person 

reading  was  a  mere  stranger,  and  not  in  the  performance  of  any 

duty  cast  upon  him  by  his  office. 

Tidds Pract.  ^j,  exemplification  under  the  great  seal  is  the  only  evidence 
'  '   where  the  record  itself  is  put  in  issue,  by  a  plea  of  a  nul  lid  re- 

cord in  another  Court  equal  or  inferior  to  that  which  gave  the 
judgment;  but  if  the  record  be  put  in  issue  in  an  action  de- 
pending in  a  Court  superior  to  that  in  which  it  is,  the  superior 
Court  may  itself  issue  a  certiorari  to  the  inferior  Court  to  cer- 
tify it :  and  if  a  record  of  the  same  Court  be  denied,  the  record 
itself  is  inspected  by  the  Judges.(e)  When  the  record,  being 
merely  inducement  to  the  action,  forms  a  part  only  of  the  evi- 
dence to  the  jury,  the  examined  copy  is  considered  as  suf- 
ficient evidence  of  it ;  but  no  copy  of  that  so  examined,  however 

Gilb-Law  authenticated,  is  admitted;  for  if  the  party  has  the  first  copy, 
and  by  oath,  or  otherwise,  proves  that  to  be  a  true  copy,  then 
the  second  is  useless,  and  if  only  that  is  produced,  then  the  first 

U.  States  V.  Johns,  C.  C.  Penn.  4  Dall.  Rep.  416.  Et  vide  Church  v.  Hubbart, 
2  Cra7ich's  Jiep .  IB7. 

The  seals  ot  foreign  municipal  Courts,  on  the  contrary  must  be  proved  by  ex- 
trinsic evidence.  Delafield  v.  Hand,  3  Johns.  Rep.  310. — Am.  Ed. 

(e)  Under  the  plea  of /iji^^je?  record,  the  defendant  cannot  give  notice  of  special 
matter  to  be  offered  in  evidence  at  the  trial.  Raymonds.  Smith,  13  Johns.  Rep. 
329. 

The  validity  of  a  record  cannot  be  impeached  by  any  allegation  in  the  pleadings. 
Green  et  al.  v.  Ovington  et  al.  16  Johns.  Rep.  55.  Austin  v.  Rodman,  1  Ruffin's 
Rlj>  71. 

Upon  the  plea  Qfiiul  tiel  record,  if  the  record  be  of  the  same  Court,  a  copy  of  it, 
ought  not  to  be  given  in  evidence,  but  the  original  ought  to  be  produced  in  Court 
i'or  inspection.     Burk''s  exrs.  v.  Tregg^s  exrs.  2  Hash.  Rep.  215. 

The  Supreme  Judicial  Court  o(  jitassachuselts,  never  direct  the  rccoi"d  of  Com- 
mon Plf  as  to  be  sent  up  on  the  trial  of  an  issue  ot  mil  tiel  record;  but  receive  copies 
of  their  records,  attested  i;\  the  Clerk  in  evidence,  which  by  immemorial  usage,  is 
held  to  be  evidence  of  the  record.    Ladd  v.  Blunt,  4  Mass,  Rep.  402.— Am.  Ed. 


RECORDS.  gg 

not  being  there  to  be  sworn  to,  it  does  not  appear  that  it  is  a  chap.  ri.  s.  i. 
true  copy.     In  some  cases,  however,  when  it  has  been  clearly  ^;''^|'^J|i>^'fi- 
shewn  that  a  record  once  existed,  which  has  been  since  destroy-  SwomCopies. 
cd,  much  inferior  evidence  of  its   contents  has  been   admitted,  — - 
especially  in  cases  where  the  record  is  only  inducement  to  an  Giib  Law 
action.(/)  Thus,  in  ejectment  for  a  rectory,  to  which  a  recusant 


( /)  The  Court  has  a  discretionary  power  to  admit  circnmstantial  evidence  of  the 
existenceof  a  record.  Moiris's  les.  v.  Vanderen,  1  DalL  Rep.  (J5.  El  vide  2 
HaifO).  Rep.  76. 

The  loss  of  a  record  cannot  be  proved  by  a  certificate  of  any  officer,  but  as  other 
facts  are.     Robimon  v.  Clifford,  C.   C.  April,  1807,  M.  S.  Rep. 

A  copy  of  a  copy  of  a  deed  or  decree,  is  not  legal  evidence,  if  the  orii^inal  or  a 
copv  thereof,  could  be  had.     Whitacre  v.  ^t  Ilhenny,  4  Mnnf  Rep.  510 

Bui  it  is,  if  lost  or  destroyed.  Baker  \.  Webb,\  Hayw.  Rep.  71.  Vide  Cim- 
ningham  v.  Tracy,  1  Con.  Rep.  252. 

A  certified  copy  of  an  ancient  deed,  recorded  on  the  grantor's  acknowledgment, 
and  accompanied  with  possession  by  the  grantee  is  evidence  without  proof  that  the 
ori.s:inal  is  lost  or  destroyed.     Roivetts  v.  Daniel,  4  JHmif.  Rep.  473. 

Wiiere  the  original  JVid  Prius  record  and  issue  roil  could  not  be  found,  the 
plaintiff  upon  affidavit  after  a  lapse  of  six  years  from  the  time  of  pronouncing  judg- 
ment, was  permitted  to  file  a  new  JVisi  Prius  record  anA  po.ftea,  to  entei'  judginent 
and  issue  execution.    Jackson  ex  d.  Smith  v.  Hammond,  1  Caines'  Rep.  496. 

So  where  an  indictment  was  lost,  the  Court  gave  leave  to  file  one  nunc  pro  tunc. 
The  People  \.  Burdock  et  at.  3  Caines'  Rep.  104.  S.  C  Col.  &  Caines'  Can.  458. 

If  tlie  original  writ  be  lost,  so  that  it  caimot  be  made  a  pttrt  of  thi-  record,  the 
Court  will  intend  after  verdict,  that  it  was  a  good  writ,  although  some  of  thi-  subse- 
quent process  be  erroneous.     Tuberville  v  Long',  3  Hen.  &  jMiinf.  Rep.  309. 

In  Virginia,  under  an  Act  of  Assembly,  where  the  records  of  a  Coui  t  were  de- 
stroyetl,  an  imperfect  minute  of  a  judgment  was  admitted  to  record  in  lieu  of  the 
original.     Lyon^s  exr.  v.  Gregory,  3  //.  &  JMunf.  Rep.  237. 

A  special  verdict  on  an  indictment  may  be  amended  by  the  Court,  by  inserting 
the  technical  reference  to  it,  so  as  to  make  the  facts  found  conform  to  the  allega- 
tions in  the  indictment;  unless  the  intention  of  ih'- jury  to  the  contrary  can  be  in- 
ferred.    Commonwealth  v.  Juddet  nl.  2  Mass,  Rep.  329. 

Evidence  by  a  p'  rson,  that  he  had  delivered  a  deed  to  the  Clerk  of  the  county  to 
be  recorded,  and  that  search  had  been  made  in  the  Clerk's  office,  and  that  it  could 
not  be  found,  is  not  sufficient  evidence  of  the  loss  of  a  deed,  to  entitle  a  part)'  to 
read  a  copy  in  evidencr,  unless  it  be  shewn  thiit  the  deed  r»ever  was  re-delivered 
by  the  Clerk.     Jackson  exd.  Dunbar  et  ul.  v.  Todd,  3  .Tohns,  Rep.  297. 

Et  vide  Jackson  ex  d.  Livingston  et  ah  v.  JVeely,  10  Johns.  Reft.  374. 

The  certificate  of  a  clerk,  stating  the  loss  of  a  record,  will  not  be  sufficient  evi- 
dence of  the  fact;  it  must  be  proved  by  the  oath  of  a  witness.  IVilcox  v.  Ray,  1 
Hayu).  Rep.  410. 

If  it  be  shewn  that  a  will  cannot  be  found,  a  record  of  the  probate  in  the  bof)k  of 
the  Judge  of  the  Court  of  Probates  is  evidence.     Jackson  ex  d.  Dunbar  v.  I^ucett 
3  Caine's  Rep.  363. 

The  copy  of  a  grant  from  thti  records,  certified  bv  the  Secreta'-y  of  the  State,  &c. 
is  sufficient  to  shew  that  a  £;raiit  once  existed  ;  and  length  of  titn-  ai)d  a  sta''-  mi  war 
ar.'  strong  grounds  to  raise  a  ()resumption  of  its  loss  or  desf  iii-Mon.  Rachel/ v., 
flolmes,  2  Bay''s  Rep.  487. 

A  new  J\isi  Print  record  was  allowrd  to  be  filed,  and  a  po.Hea  •  (;<!ijrsed  '.hereon 
according  to  a  judgment  of  six  years'  standing,  and  execution  thereon,  upon  affida-. 


gQ  RECORDS. 

Ch«p.  IT.  s.  l.had  presented,  the  record  of  his  conviction  being  destroyed  by 
Exi  mpiifi-      c       j^  ^^.^g  nermilted  to  be  proved  by  the  estreats  in  the  Exche- 
Sworn  Cojjies.  quer :   but  in  these  cases,  the  most  strong  and  satisfactory  evi- 
■      dence  is  required;  the  collateral  evidence  should  prove  the  same 
Kni-htw        facts,  as  the  regular  evidence  would,  if  in  existence;  and  there- 
323'   '^'    ^'    fore,  where   the  estreat  and  presentment  were  of  the  same  as- 
sizes, it   was  held  to  be  no  proof  of  a  conviction,  for  the  Stats. 
23  Eliz.  c-l,  and  29  Eliz.  c.  6,  direct  proclamation  to  be  made 
at  the  assizes  where  indicted,  and  for  the  person  to  render  him- 
self before  the  next  assizes,  and  therefore  he  could  not  be  con- 
victed at  the  same  assizes.     This  species  of  evidence  can  be 
applicable   to  those  cases  only,  where  very  ancient  rpcords  are 
D)ua;insr.      jo^t ;   for  if  a  recent  loll  be  lost,  iind  its  contents  can  be  ascer- 
2  Jiur"^'.  7i2.    tained,  the  Court  will  permit  a  fresh  one  to  be  engrossed. 

Conies  of  judgments  must  in  general  be  stamped;(l)  but  it  has 
Wnii;<ii,  been  held,  that  no  stamp  is  necessary  on  a  copy  of  the  minutes 
Cowi).  17.       ^jf  .^  judgment  in  the  House  of  Lords.(g-) 

The  exemplifications  or  copies  under  seal,  are  considered  as 
of  higher  authority  than  any  sworn  copy,  for  the  Courts  of  Jus- 
tice which  put  their  seals  to  them,  are  supposed  to  be  more  ca- 
pable of  examining  them,  and  more  critical  and  exact  in  their 
examination,  than  any  other  person  is,  or  can  be  ;  and,  there- 
fore, no  other  proof  is  necessary   of  such  copies,  than  the  pro- 

(2)  Gilb.  Lawduction  of  them,(2)  for  the  Courts  under  whose  seals  they  are 
Ev.  14. 19.      authenticated    making   a    part  of  the  law  and  constitution  of 

the  country,  their  seals  are  supposed  to  be  already  known  to 
every  person,  like  every  other  part  of  the  law;  and,  for  the  same 
reason,  the  seal  of  a  Court  constituted  by  Act  of  Parliament,  as 
the  Great  Sessions  in  Wales,  or  a  county  palatine,  is,  of  itself, 

(3)  Oliver,    suilicient  proof  of  the  record  it  authenticates.(3)  (A) 

(jui.., 

2  Sid.  145. —  — 

Hai-d.  118.       vit  she w I- g  the  probable  loss  ot  the  originals.     Jackson  ex  d.  Smith  \.  Hammond, 
^'  ^'  1  Caine's  Rep.  496. 

A  Jleii facias,  after  levy  upon  it,  having  been  accidentally  burnt  in  the  house  of 
a  deputy  slit  riff,  the  Court  ord.red  a  new  one  made  out  and  delivered  to  him. 
White  V  L'tvejoy,  3  Johns.  Rep.  448 

W'liert-  it  was  proved  that  the  records  of  the  clerk's  office  had  been  almost  entire- 
ly buri.t,  and  that  the  few  which  remained  were  in  a  mutilated  state,  the  Court  ad- 
mittt-ii  the  joui  nals  of  the  Court  in  evidence,  to  prove  that  an  action  had  been  com- 
menced and  abated  by  the  deatii  of  the  plaintiff.  Cook  v.  Wood,  1  JH'  Cord's  Rep. 
139.— Am.  Ed. 

{.S)  'T*'  ""akt^  t^f"  certificate  of  a  Judge,  authenticating  a  judgment  in  another 
State,  evidence  under  the  Act  of  Congress  of  1797,  ii  w  as  not  necessary  that  it  should 
have  b  en  stamped.     Frcy  v.  Wells,  4  Yeates''  Rep.  396 — Am.  Ed. 

(A)  On  a  trial  by  record  of  an  action  brought  on  a  judgment  in  the  Circuit  Court 
of  the  United  States  for  Massachusetts,  office  copies  were  admitted  in  evidence. 
Jenkins  v.  Kinsley,  Col.  ^  Caine's  Cas.  136. 


RECORDS.,  gl^ 

Something  similartoexemplificationsundertliesealof  a  Court,  chap.  ii.  s.  i. 
are  what  are  denomiiiated  o^ice  co;jies  of  its  proceedings,  granted  P'oofhyOi- 
out  and  authenticated  by  an  oflBcer  appointed  by  the  law  for  that  °^'^^' 

purpose.  There  are,  however,  but  few  instances  in  which  an  of- 
ficer is  so  entrusted,  and  thougli  in  cases  where  he  is,  the  law, 
on  account  of  the  confidence  reposed  in  him,  receives  his  copy 
without  further  evidence  ;  yet,  where  that  trust  does  not  form 
part  of  the  duty  of  his  office,  his  certificate  is  no  more  than  that 
of  any  other  private  person,  and  gives  the  copy  ceriified  no  cre- 
dit whatever. 

Thus,  though  in   every  instance,  where  any  copy  of  a  pro- 
ceeding is  granted  out  by  an  officer  of  the  Court,  as  copies  of 
proceedings  in  Chancery,  in  the  Crown  Office,   &c.  it  is  com- 
monly called  an  office  copy,  and  such  copy  is,  for  the   sake  of 
convenience,  permitted  to  be  read  in  any  part  of  the  same  cause; 
it  is  not  legally  evidence  before  any  other  Court.     The  office  co- 
pies of  the  bill  answer,  and  depositions  are  read  in  the  Court  of 
Chancery  without  further  proof;  but  at  common   law  they  are 
no  evidence,  unless  examined  and  proved,  because  the  officer  is 
not  entrusted  by  the  law  to  authenticate  such   copy.(i)    The^^'ib.  LawEv. 
chirograph  of  a  fine,  or  the  endorsement  on  a  deed  by  the  proper  bu1,n,P. 229, 
officer,  of  its  having  been  enrolled,  are  good  evidence  of  the  fine 
having  passed,  or  the  deed  having  been  enrolled,  without  prov- 
ing them  examined  ;  for  the  officer  is  appointed   by  law  to  give 
out  the  copies  in  the  one  instance,  and   the  certificate  in  the 
other.     So  an  endorsement  of  a  deed    having  been  enrolled  by  Kinnersiy  v, 
the  auditor  of  the   Duchy   of  Lancaster,  pursuant  to  a  clause  g^g'^^'^""^'' 
in  the  deed  is  good  evidence  of  the  enrolment.  But  an  endorse- 
ment on   the  fine,  by  the  same  officer  who  made  out  the  chiro-  oiib.LawEv. 

•  •  •  Rul   N"   P 

graph,  that  proclamations  had  been  made,  is  no  evidence  of  such  ^  sup,.a, 
proclamations:  because,  though  the  chirographer  is  authorised 
to  make  copies  of  the  agreement  filed  of  record  for  the  parties, 
yet  the  Statute  which  gives  that  authority  does  not  appoint  him 
to  copy  the  proclamations.  To  prove  these,  therefore,  the  copy 
must  be  examined   with  the  record,  and  proved   as  in  other 


Certified  office  copies,  when  admissible,  instead  of  exemplification  of  the  record. 
Vide  Jenkins  v.  Kinsley,  Cokm.  Cas.  137.  Vickery  v.  J\l' Knight,  4  Binn.  Rep. 
209. 

A  record  under  the  seal  of  the  Court  being  the  highest  evidenci-,  must  be  pro- 
duced ill  preference  to  any  oilier  testimony.  Tiiompson  v.  Buihck,  1  Bay^s  Hep. 
536.— Am    Ed. 

(i)  They  are  admitted  at  J^'isi  FHits.  Jknnell  v.  Lyon  adm,  1  Barn,  iJ  Al,  Rep. 
182.— Am.  Ed. 


6S  RECORDS. 

Chap.  II.  s.  i.cases.(A:)     So  a  copy  of  a  judgment,  made  by  the  Cierk  of  the 
ice    "l'"*^- Treasury,  must,  nevertheless,  be  examined  with  the  original  re- 
'  cord  :  and  if  a  deed  be  Zos/,*  and  a  copy  made  out  from  the  en- 
rolment, and  offered  to  a  jury  as   the  next  best  evidence  the 
case  will  admit  of,  it  should   be  examined  with  the  enrolment, 
and  proved  by  a  witness  :  for  though  the  Stat.  26  Hen.  8,  c.  1 6, 
authorises  the  clerk  to  certify  the  enrolment,  he  is  not  entrusted 
to  give  out  copies.     The  clerk  of  the  rules  is  appointed  to  make 
out  the  rules  of  the  Court,  and  authenticate  them,  and  therefore 
a  rule  j-.oduced  under  his  hand,  is  sufficient  without  proving  it 
(t)  Selby  V.  examined  with  the  entry  in  the  books  :(1)  and  in  like  manner  a 
Kaym'7451'   co:  V  of  de,ositions  sworn  at  a  Jiid<ie's  chambers,  delivered  out 
by  ihe  Juuge's  Clerk,  and  attested  by  his  signature,  is  sufficient 

(2)  Duncan    without  examination  with  the  original  deposition. (2)  But  where 
■D.  Scott,         the  examination  of  a  soldier  had  been  taken  by  two  magistrates, 

touching  his  settlement,  it  was  heul  that  the  signatures  01  the 
magistrates  should  be  proved,  notwithstanding  the  mutiny  Act 

(3)  Rix  V.    makes  such  examination  evidence  of  his  settlement.(3)  (/) 
Bolton,  with       Yt  is  in  general,  a  rule,  that  before  exemplifications,  or  other 

Ilanowgate,  &  '  »  •  . 

1  East.  13.  copies  of  records,  are  made,  the  record  should  be  drawn  up  in 
&'?!(?. ?2k'  ^^^^>  ^"^  though  by  the  practice  of  the  Courts  at  TVesfminster, 
the  party  may  take  out  an  execution  immediately  the  judgment 
paper  is  signed  by  the  officer  of  the  Court ;  yet  it  is  not  a  per- 
fect and  permanent  record  till  brought  into  Court,  and  there  filed 
as  a  memorandum  or  roll :  till  that  is  done  it  is  transferable 
to  any  place,  and  so  does  not  come  within  the  reason  of  the  law, 

(4)  Gilb.  Law  which  permits  a  copy  to  be  given  in  evidence.  (4)     But  when,  by 
^'"  ^^*  the  practice  of  the  Court,  the  minutes  are   considered   as  the 

judgment  itself,  and  it  is  not  usual  to  make  any  further  entry, 
copies  of  such  minutes  may  be  given  in  evidence,  as  is  always 
done  in  the  case  of  minutes  in  the  House  of  Lords  of  the  judg- 
ment given  by  them  on  an  appeal  from  the  Court  of  Chan- 
t.'i)  Jones*,    eery.:  5) (m) 

Randnll, - — _ 

Cowp.  17. 

(k)  When  an  instrument  must  be  recorded  in  order  to  be  valid,  a  copy  certified 
by  the  Register  is  sufficient  evidence.     Yarborough  v.  Beard,  Tayl.  Rep.  25. 

Vide  post  Chap.  II.  sec.  4.— Am.  Ed. 

•  Vide  post. 

(?)  Where  one  party  serves  copies  of  affidavits  on  another,  the  originals  of  which 
are  00  file,  he  cannot  afterwards  object  to  the  copies  being  read  in  evidence  by  the 
party  on  whom  they  were  served,  but  they  are  to  be  considered  as  equivalent  to  of- 
fice copies.    Jackson  ex  d.  Wood  v.  Harroiu,  11  Johns.  Rep.  434. — Am.  Ed. 

{m)  To  make  a  record  conclusive  evidence,  and  to  give  it  "fidl faith  and  credit" 
in  Peimsylvania,  it  must  be  authenticated  according  to  the  Act  of  Congress,  26th 


RECORDS.  gg 

The  record  being  so  completed,  the  whole,  and  not  a  part  only.  Chap.  n.  s.  i, 
must  be  exemplified  or  copied,  in  order  that  the  Court  may  be  ^^^  *'"''® 

t^  .  .  •'  must  be  co- 

in possession  of  the  full  effect  of  it ;  for  a   partial   extract  maypifd. 

bear  a  very  different  import  from  the  whole  taken   together  :(1)  ■ 

but  in  cases  of  public  concern,  such  as  the   minister's  return  to(*)  ^^''^t-i-^s. 

Gillj.  Law  Ev 

the  commission  in  Henry  the  Eighth's  time  to  inquire  into  their. 23. 
value  of  livings,  so  much  as  relates  to  the  particular  matter  in 
dispute  is  sufficient,  without  proving  the  comm'Ssion.(2j  (n) 

Having  thus  shewn  how  a  record  is   to  be   pioved,   the  next  Against  whom 
object  of  inquiry  will   be,   against  whom  it  is  evidence,  and  to  ^i^j^ 5°:^ j^'^^j^ 
what  extent.     It  is  an  established  rule  of  law,  that  a  fact  which ''^nce,  and  its 
has  once  been  direcfly  decided  shall  not  be  again  disputed  be- 
tween the  same  parties  ;  and  therefore  a  judgment  of  the  same  (2)  Pei 
Court,  or  one  of  concurrent  jurisdiction,  whether  upon  verdict,  sir' Hueli    '" 
demurrer,  or  by  default,  if  t/irecZ/y  upon  the  point,  may  be  pleaded  ymiihsm's 

cnse,  vide 


JMaij,  1790,  {^Ing.  Dig.  70)  but  a  copy  of  a  record  otherwise  certified  may  be  re 
ceived  as  prima  facie  evidence.     Baker  et  al.  v.  Field,  2  Teates''  Rep.  532.     Ras- 
ton  V    Cumimns,  cited,  ibid.      Sed  contra,  DmmtnoiuVs  adins.  v.  JMagriider  &  Co. 
et  al.  9  Cranch^s  Rep.  125. 

But  (lie  record  of  a  Court  of  the  United  States  is  not  within  the  Act  of  Congress. 
Jenkins  v.  Kinsley^  Col,  &  Caines''  Cas.  136.  Pepoon  v.  Jeyikins,  2  Johns.  Cas. 
119. 

To  make  a  record  of  one  State  evidence  in  another,  the  attestation  must  not  be 
according  to  the  form  used  in  the  Slate  where  it  is  offered,  but  to  that  of  the  State 
or  of  the  Court  whence  the  record  ccnes;  and  liie  only  evidence  of  this  fact  is  the 
certificate  of  the  presiding  Judge  of  that  Court.  Craig  v.  Broivn,  \  Peters'  Rep. 
352.  The  attestation  must  be  certified  by  the  presiding  Judge.  Smith  v.  Blagge. 
1  Johns.  Cas.  238. 

Whenever  the  Court,  wliose  record  is  certified,  has  no  seal,  this  fact  shouUI  ap- 
pear either  in  the  certificntc  of  the  Clerk  or  that  of  the  Judge.  Craig  y.  Broioit, 
1  Peters'  Rep.  352.    Et  vi-le  .2fc/on  v.  Taylor,  Hayw.  Rep.  395. 

The  atteslHtion  by  the  vh-  k  of  tlie  recoril  of  a  judgment  in  another  State,  must 
have  the  seal  of  the  Court  annexed  to  it,  and  it  is  not  sufficient  tliai  the  seal  of  tlie 
Court  is  annexed  to  the  certificate  oi  the  Judge.  Turner  v.  Waddington,  C.  C 
Oct.  1811,  J/  S.Rep. 

A  record  informally  certified  cannot  be  read  on  a  question  of  discharging  on  com- 
mon bail.     Craig  v.  Brown,  1  Peters^  Rep.  352. 

The  record  of  a  will  under  tht  Statute  in  J\'gw  York  is  not  conclusive  upon  the 
heirs — they  may  impeach  its  validity.  Jackson  ex  .  JVoodhuU  v.  Ramsey,  3  Johns. 
Cas.  234.— Am.  En. 

(m)  If  part  of  a  record  is  proiluced  to  prove  a  fact,  and  is  deficient,  it  cannot  be 
helped  out  by  evidence  dehors  the  record  ;  bin  the  whol  record  must  be  produced. 
Les.  of  James  y.  Stockey  et  al.  C.  C  Jn-  1S06,  JIf.  ,S'.  Rep. 

Short  minutes  oi  proceedings  i<^i  the  '  i  ir  .  but  not  appearing  to  be  a  record  of  the 
whole,  nor  certified  by  the  Clerk  to  he  ;.  s  <t\  of  any  pait  of  the  record,  is  not  evi- 
dence. Barton  V.  Commjmweulth,  Sup.  Ct.  .^pril,  ISli,  J\t.  S.  El  \h\ii  Feiguson 
V.  Harxvood,  7  Crunch.  R,-p.  412. 

An  execution  oat  oi  Chanc  ry  refuseil  to  be  allowed  in  evidence,  unless  the  origi- 
nal decree  should  be  produced  on  which  the  execution  wasfouudeiL  fVilson  v.  Co. 
nine,  2  Johns   Rep.  280.— Am,  Ed. 


Bui.  N.P> 

228. 


64j  records. 

Chap.  n.  s.  i.in  bar  in  cases  where  special  plea'ling  is  required,  and  in  other 
Agaiustwhom  given  in  evidence  on  the  general  issue,*  as  conclusive  be- 

a  recO'O  in  a  f>  _  ~ 

civil  suit  is  evi-tween  the  parties  upon  the  same  matter  coming  either  directly 
eS'""^  "'or  incidentally  in  question.(l)  (o) 


Tr.  261.  '  *  I"  Vooght  v.  Wincli,^  Bam.  &  Md  662,  the  Court  lifld  that  to  makes  former 
verdict  conclusive  in  any  case,  it  should  li-  pleaded  by  wav  oF  estoppel,  and  that  if 
not  so  pit  adtd  it  could  only  be  left  to  the  jury  as  evidence,  but  not  as  conclusive  of 
the  right.  To  this  di-cision,  however,  may  be  opposed  the  cms-s  of  Hitchen  v. 
Campbell,  2  Black.  827 ;  3  Wils.  304.  S  C  ;  Budcl  v.  Randall,  3  Burr.  1353  ;  and 
Scott  V.  Shearman,  '2  Black.  977,  which  are  staled  in  the  following  pages.  It  is  also 
to  be  observeil  that  according  to  th'-  cases  of  Sir  Fred.  Evelyti  v.  Haynes,  3  East. 
36,  fnd  JMiles  v.  Hose,  5  Tannt.  705,  the  judgment  in  the  above  case  wduld  not  have 
been  conclusive  if  pleaded  ;  being  only  a  verdict  on  the  general  issue  in  an  action 
on  the  case,  when  the  question  of  right  was  never  pointedly  put  in  issue.  In  most 
of  the  cases  cited, /<os^  the  judgments  which  were  held  to  be  conclusive  were  not 
pleaded. 

(o)  The  decision  of  a  Court  of  competent  jut'isdiction  is  conclusive  where  the 
same  point  comes  directly  or  collaterally  again  in  controversy.  Les.  of  IViiffht  v. 
Becklyiie,  1  Peters^  Rep.  202.  Hopkins  v.  Lee,  6  Wheat.  Rep.  109.  Vidr-  Harris 
V.  Richards,  2  Gallis.  Rep.  220.  Ovrton's  les.  v.  Lackey  et  at..  Cookers  Rep.  193. 

But  it  should  appear  from  the  record  that  such  point  was  in  issue  JMaimy  v.  Har- 
^is,  2  Johtis.  Rep.  24.  Et  vide  Shelton  v.  Barbour,  2  fVash.  Rep.  64. 

But  it  coay  be  opposed  by  fraud  or  subsequent  payments.  Buford  v,  Buford, 
iMunf.Rep.  241. 

A  discharge  by  a  Court  of  competent  jurisdiction  of  a  person  as  a  poor  insolvent 
debtor,  under  the  Bread  Act,  cannot  be  impeacheil  in  a  collateral  way,  by  proof 
ih:it  at  the  time  of  his  discharge,  he  was  in  possession  of  a  sufficient  sum  of  money 
to  pay  the  debt  for  which  he  was  confined.  M'£inney  v.  Crawford,  8  Serg.  &  R. 
Rep.  351. 

The  record  of  a  judgment  against  James  R.  was  admitted  as  evidence  against 
Joseph  R.  it  appearitig  that  the  latter  was  in  f:<ct  the  party  to  the  suit,  and  defended 
it.     Stevelie  v.  Reed,  C.  C.  Oct.  1808,  Jil.  S  Rep. 

An  order  of  the  Sessions  on  a  dispute  betweeii  two  townships,  respecting  a  pau- 
per, is  conclusive  upon  a  new  township,  subsequently  created  by  a  division  of  one 
of  them.   Gibsowv.  Clifford,  2  Serg.  ^  R.  Rep.  i22. 

Where  several  suits  had  been  instituted  on  a  policy  of  insurance,  and  aii  agree- 
ment signed  by  all  the  underwriters,  to  be  bound  by  one  verdict,  it  was  nded  that  a 
special  verdict  given  in  that  action  might  be  read  m  evidence  in  a  suit  again^tHi.rther 
of  the  underwriters,  though  not  as  conclusive.  Patton  v.Caldivell,  1  Dall   Rep.  419. 

If  the  matter  in  dispute,  in  an  action  at  Law  in  one  Stat'-,  has  been  decreed  in 
Equity  in  another,  the  decree  is  conclusive.  JMontford  v.  Bunt,  C.  C.  Penn  ^iprilf 
1811,^/.  S.Rep. 

But  a  decree  in  Chancery,  dismissing  a  bill  between  the  same  parties,  and  on  the 
same  matter,  is  not  conclusive  in  a  Court  of  Law.  Les.  of  Wrig-hfv.  Decklyne, 
1  Peters'  Rep.  199. 

A  former  verdict  in  the  same  case,  which  had  been  set  aside  by  the  Court,  is  not 
evidence.  Ridgeley  v.  Spejicer,  2  Binii.  Rep.  70. 

So  a  verdict  in  a  former  action  of  ej^ctinent,  where  it  was  reversed  for  error  in 
fact,  is  not  evidence  in  a  subsequent  action.  Richard'son's  les.  v.  Parsons,  1  Bar. 
&  Johns.  Rep.  235. 

A  judgment  reversed,  is  a  mere  nullity,  and  no  inference  of  law  can  arise  from  it. 
Green  v.  Stone,  ibid.  405, 


RECORDS.  gg 

Thus  a  judgment  for  the  recovery  of  a  debt  is  conclusive  evi-  Chap.  ii.  s.  i. 

tlence  of  its  existence  a";ainst  the  party  to  such  iudsroent  and  ^,'.'  "'"''"'*  '"^ 
/^  '        •'      .  J      •  '^ '^  '  Actions. 

his  representatives;  and  a  man  who,  on  being  sued,  gives  a  cog- 


But  ^  verdict  in  »  former  ejectment,  on  wtiich  no  judgment  has  been  entered, 
maj  be  given  in  evidence,  if  defendant  has  acquiesced  in  it  by  payment  of  costs  and 
delivery  of  possession.   Shuefftr  v .  Kreitzei-,  0  Binn.  Rep   430. 

A  verdict  tor  the  sameciiuse,  and  l)etwe<'n  the  same  parlies,  is  evidence,  althimgli 
no  judgment  has  been  entered.  Felter  v.  .Mulliiier,  2  Johns.  Rep.  181. 

A  verdict  without  judgment  thereon,  cannot  be  given  in  evidence.  Donaldson  v. 
Jude,  2  Bibb's  Rep.  60. 

A  verdict  between  the  same  plaintiff,  and  different  defend:iiit,  for  the  same  land, 
iS  not  evid'^ncf,  although  offered  by  defendant.  Hurst  v.  JMJSi'eil,  C.  C.  April, 
1804,  M.  S.  Rep. 

A  case  made  between  the  assurers  and  assured,  in  an  action  on  a  policy  of  insnr 
ance,  will  not  be  received  in  evidence  in  another  suit  in  wbicli  ilie  parties  are  dif 
ferent,  though  it  relates  to  the  same  suliji.ct  or  policy.  Etting  v.  Scott,  2  Johns.  Rep, 
157. 

A  decree  in  one  case,  cannot  be  used  as  a  defence  in  another,  when  the  subject 
matter  is  distinct  and  independeu.  Lyon  ct  al.  v.  Tallmadge  et  al.  14  Johns.  Rep. 
501. 

A  verdict  against  the  Sheriff  for  the  default  of  his  deputy,  is  evidence  in  an  action 
by  the  Sheriff  against  the  deputy.   Tyler  v.  Ulnwr,  X'iMass.  Rep.  103. 

A  verdict  in  an  action  by  the  graniee  in  a  deed,  a.s;ainsl  one  who  does  not  claim 
to  hold  under  the  grantor,  is  not  evidence  in  an  action  by  the  graniee  against  the 
grantor  for  a  breach  of  h's  covenant,  that  he  liad  good  title  to  convey.  Tivumbly  v. 
Henley,  4  Mass.  Rep.  441. 

In  an  action  of  covenant  against  the  'warrantor  in  a  deed  for  land,  the  judgment  Of 
recovery  against  the  grantee,  with  notice  of  tlie  suit  to  the  warrantor,  is  evidence, 
Bamilton  v.  Cnits  et  at.  4  Mass.  Rep.  349. 

Verdicts  and  judgments  ai'e  evidence  between  parlies  and  privies  only-  Wood  v, 
Davis,  7  Cranch's  Rep.  271.  Davis  v.  Wood,  1  Wlieat.  Rep.  6.  Jackson  e.r.  d. 
Schuyler  et.  al.  v.  Vedder,  3  Johns.  Rep.  8.  Paynes  v.  Coles  et  al.  1  Miinf.  Rep. 
373.  Et  vide  Jackson  ex.  d  JVetucomb  v.  Smith,  9'Johns.  Rep.  100.  .Tuckson  e.r.  d. 
M  Donald  v.  M'  Cull,  10  Do.  377.  Kiddie  v.  Debinz,  1  Hayiu.  Rep.  420.  Coxvles  v. 
Hurts  et  al.  3  Con.  Rep.  516. 

So  if  the  same  puints  are  in  question,  though  the  lands  or  other  things  are  not 
the  same.  Preston  \.  Hardy,  i  H.  &  Munf.  Rep.  55.  Et  vide  Chapman  v.  Chap- 
man, 1  Munf.  Rep.  398. 

An  action  will  not  lie  before  one  justice,  to  recover  back  the  amount  of  a  fine  im- 
posed on  a  witness,  by  another  justice,  for  a  contempt  in  a  suit  before  him.  Moor  v. 
Ames,  3  Caines''  Rep.  170     ' 

In  an  action  by  the  vendee  of  a  chattel  against  the  vendor,  on  the  implied  war- 
ranty of  litle,  the  reco'd  in  a  previous  action,  in  which  the  vendee  was  'ic'ed,  and 
to  the  pendency  ol  which  the  vendor  had  notice,  is  eviih  nee.  Jilasdale  v.  Babcock 
I  Johns  Rep.  S\7  Garland'' s  exrs.  v.  Goodloe^s  adni.  2  Hay xv.  Rep.  351.  Et  vide 
Clark    v.CaniniTton.  7  Cranch.  Rep.  308. 

Wh'ie  a  Sheriff  who  bad  taken  bond  with  sureties,  for  the  liberties  of  the  jail 
granted  to  a  prison'  •■  in  execuiion,  was  sued  for  an  esca])e,  of  which  suit  the  sureties 
nail  notice,  and  »  judgment  was  recovered  against  him  ;  in  an  action  by  the  .Sberifl' 
on  the  bond  against  liie  prisoner's  sui<-ii' '■,  i:  was  held,  that  the  former  judgment 
■was  conclusive.  Alp  v.  Bngham,  7  Johns.  Rep.  168. 

K 


39 


66  RECORDS. 

Chap.  n.  s.  i.^ofiHor  the  debt,(])  or  pays   money  into  Court,(£)  or  sufters 
i"''?'"f "^^  '"  iudgment  by  default,  will  not  afterwards  be  permitted  to  recover 

Civil  Actions.  J      f  ''  ,,, 

^_^_^^^  back  the  money,  though  he  can  shew,  by  the  clearest  evidence, 

(1)  Maniot — ~ 

3f'     „"™P'^"'       The  record  of  pi  oceedings  on  a  writ  of  ad  quod  damnnm,  are  conclusive  evidence 
/  X    Kei).  20.7. 

'        '  against  all  persons  who  were  parties  thereto,  until  they  are  reversed.    Sanders  v. 

(2)  Vaughan    Jll' Cracken ,  Hardiii's  Rep.  260, 

%'.  Barnt-s,  In  an  action  brought  against  the  warrantor,  the  record  of  eviction  was  held  to  be 

2  Bos.  &  Pull,  conclusive,  on  a  breach  of  the  covenant.     Raddiffs.  Slap,  Hardin'n  Rep.  292. 

In  Connecticut,  in  the  case  of  Lane  v.  Cook,  3  Dai/''s  Rep.  255,  it  was  decided 
that  a  record  stating  that  the  defendant  in  an  action  of  book  debt,  appeared  and 
pleaded  that  he  owed  (he  plaintiff  nothing,  but  that  the  plaintiff  owed  him,  and  judg- 
ment that  the  parties  were  fully  heard  thereon,  is  conclusive  against  him  in  another 
action. 

A  confession  of  judgment  by  the  endorser  of  a  promissory  note  is  evidence,  but 
not  conclusive,  of  notiee  of  demand  on  the  drawer,  and  refusal  by  him  to  pay  the 
note,  or  waiver  of  such  notice  ;  but  it  may  be  rebutted  and  explaine<l  by  the  cir- 
cumstances under  which  the  confession  was  made.  Richter  v.  Selin,  ■^  Serg.  SJ 
R.  Rep.  425. 

The  validity  of  a  record  cannot  be  impeached  by  any  allegation  in  the  pleadings. 
Green  el  al.  v.  Ovington  et  al.  16  Johns.  Rep.  55. 

The  record  of  a  voluntary  confession  before  a  justice,  and  the  payment  of  the 
whole  penalty,  may  be  pleaded  in  bar  to  a  qui  tarn  action.  Hamilton  v.  IfllUams, 
1  Tyl.  Rep.  15. 

In  an  action  against  the  Sheriff  for  an  escape,  he  gave  notice  of  the  suit  to  the  pri- 
soner's sureties,"  who,  in  conjunction  with  the  Sheriff,  defended  it,  and  judgment 
was  given  against  the  Sheriff  in  an  action  by  the  Sheriff  againsi  the  sureties,  on  the 
bond  for  his  indemnity,  the  former  judgment  is  conclusive  evidence,  and  the  defend- 
ants cnnnot  controv(>rt  the  fact  of  the  escape.  Kip  v.  Jirigham  et  al.  6  Johns.  Rep. 
158.5.  C.  7  Bo.  168. 

,  The  same  cause  of  action  is  where  the  same  evidence  will   support  both  actions. 
Rice  v.  ICing,  7  Johns.  Rep.  20.  S.  P.  Johnson  v.  Simth,  8  Do.  3^3. 

A  plea  of  former  recovery  and  satisfaction,  necessarily  contains  matter  of  fact  and 
record,  and  may  conclude  to  the  country.   Thomas  v.  Rumsey,  6  Jolms.  Rep   26. 

The  record  of  the  verdict  and  judgment,  upon  a  writ  of  inquiry,  in  a  suit  by  the 
mother  of  the  plaintiff  against  a  third  person,  in  which  record  ihe  ground  of  the 
judgment  does  not  appear,  may  be  given  in  evidence  to  prove  that  the  mother  had 
recovered  her  freedom.  But  the  questions,  upon  iv  hat  ground  the  judgment  in  that 
suit  was  rendered,  and  whether  the  defendant  was  born  after  her  mother  acquired 
her  right  to  freedom,  or  not,  ought  to  be  left  open,  Pegram  v.  Jsabell,'2  H.  & 
Munf.  Rep  193. 

In  Yuung  et  al.  v.  Black,  7  Crunch.  Rep.  505,  it  was  given  in  evidence  under  the 
general  issue. 

But  in  Vooght  v.  IVinch,  2  Barn.  &  Aid.  662,  it  was  held,  that  the  verdict  and 
judgment  for  the  defendant  in  the  former  action,  was  not  conclusive  evidence  against 
the  plaintiff  upon  the  pli-a  of  not  guilty.  Sed  vide  Preston  v.  Harvey,  2  Hen.  &f 
JMwif.  Rep.  55.  Shelton  v.  Barber,  2  Wash.  Rep  64.  Church  v.  Leaven~iVorth, 
4  Day's  Rep.  274,  Ryer  v.  AtToater,  ibid.  431.  77ie  Town  of  Canaan  v.  Green 
Woods  Turn.  Co.  1  Con.  Rep.  1. 

In  Ryer  v.  Atxvater,  4  Day's  Rep.  431,  Swift  J.  says,  that  where  there  are  se- 
veral distinct  facts  contested  between  the  parties,  there  is  no  authority  to  warrant 
the  ailmissioii  of  a  verdict  to  prove  one  of  the  several  facts  in  issue. 

When  underwriters  agree  to  be  bound  by  a  venlici  against  a  different  underwriter, 
on  the  same  polii  y,  the  vt-rdict  then  may  be  given  in  evidence  against  iheiu.  Pat' 
tonv.  Caldwell,  1  Dull.  Rep.  HO, 


RECORDS.  Qy 

(hat  he  has  paid  it  before  :(p)  and  even  if  no  judgment  be  sign-  Chap.  ii.  s.  i. 

ed   or  formal   act  done  in   consequence,  but  a   party  on  beineiv'sments  in 

'  i.--i^\  1  1      ^'^''  Actions. 

sued,(l)  or  a  tenant  when  distrained  on,(2)  pays  the  money  de- 

manded  of  him,  protesting  at  the  same  time  that  it  is  not  due  ;(i)  Rrown  v. 

M'Kiiially, 

""  "  ~~1  Esp.  Cas. 

On  tlie  trial  of  a  suit  in  1791,  the  defendant  was  allowed  to  give  in  evidence  the  279. 

record  of  a  trial,  verdict  and  iudement,  between  the  same  parties  in  1775.  Leach  v.  ,>,,., , 
„..„„„„,,„,  (2)  Knibbs  v. 

Jlrmitage,  2  Dall.  Rep.  125.  jj^'n    j  ^ 

Where  the  parties   are  really,  though  not  nominally  the  same  in  both   suits,  as  Cas. 'si. 
vhere  one  suit  is  in  the  name  of  the  trustee,  and  the  othi  r  in  that  of  the  person  be- 
neficially interest'  d,  it  has  been  held,  that  the  record  in  the  fii-st  cause  was  evidence 
in  the  second.   CalhoHn''sles.  \.  Dunning,  \  Dall.  Rep  120. 

Although  the  defendant  in  possession  gives  up  the  premises  in  an  ejectment,  and 
afterwards  the  plaintiff  recovers  judgment,  the  judgment  is  conclusive  against  sucb 
third  person.  Jackxoiiv.  Stone,  13  Johns.  Rep.  447. 

In  an  action  for  mesne  profits,  the  recoi-d  of  the  judgment  in  ejectment  is  conclu- 
sive evidence  that  the  defendant  was  in  possession  at  the  lime  the  ejectment  was 
brought,  and  also  as  to  title  during  the  whole  time  laid  in  the  demise  ;  but  it  is  not 
evidence  of  the  length  of  time  that  defendant  was  in  possession.  Bailey  et  al.  \. 
Fairplay,  6  Binn,  Rep.  450.  Vide  Jackson  v.  Haviland,  13  Johns.  Rep.  229. — 
Am.  Eu. 

(/))  If  a  judgment  is  conclusive  in  the  Courts  of  the  State,  where  if  is  obtained,  it 
is  conclusive  in  every  other  State,  District,  and  Territory  in  the  U-  Staten;  and  the 
plea  of  7w7  debet  is  not  good  to  an  action  upon  such  judgment,  in  a  Court  of  another 
State.  Mills  v.  Diiryee,  7  Cranch^s  Rep.  483.  Hampton  v.jM'CoTinel,  3  Wheat. 
Rep.  234.  Etvide  Rogers  v.  Coleman  et  ux.  Hardin^ s  Rep.  413.  Clark^s  exrs. 
v.  Cavrington,  7  CraiicK's  Rep.  308.  Buford  v.  Biiford,i  Munf.  Rep.  2il. 
Green  v   Sarmiento,  1  Peter's  Rep.  74. 

In  an  action  for  a  malicious  prosecution  in  a  foreign  country,  it  is  not  indispensably 
necessary  to  produce  a  copy  of  the  r>^cord  of  the  proceedings  there,  but  the  plaintiff 
may  prove  them  aliunde.     Young  v.  Gregory,  3  C(dl's  Rep.  446. 

Wherea  parly  applied  in  the  first  instance  tea  Court  of  Laxu,  toallow  the  set-off, 
and  that  Court,  after  a  full  consideration  of  all  the  circumstances  of  the  case,  refused 
to  allow  it.  Chancery  refused  to  sustain  a  bill  fil-^d  for  an  injunction  and  a  set-ofT. 
Simpson  v.  Hart,  1  Johns.  Cha.  Cas.  91.  Et  vide  Le  Guien  v.  Governenr,  1  Johns. 
Cas.  in  Er.  436.  Cobb  v.  Curtis,  8  Johns.  Rep.  470.  JFhite  v.  TFard  et  al.  9  Bo. 
23-i.    Moore  v.  Ames,  3  Caines'  Rep.  170. 

But  a  verdict  in  a  Court  of  Latu,  against  a  party,  is  no  bar  to  a  defence  in  his  fa- 
vour, if  he  be  brought  into  Chancery  by  the  adverse  party  ;  otherwise  if  he  were  the 
plaimiff  m  Equity.     Jones  v.  Jones,  i  H.  &  JMunf.  Rep.  447. 

If  the  party  prosecute  his  action  at  law,  and  there  be  a  decision  of  an  inferior 
Court  against  him,  from  which  he  takes  an  appeal,  but  does  not  prosecute  if,  he  can 
net  come  into  equity  for  relief,  for  the  same  subject  matter.  Saunders  v.  jVTarshall, 
4  H.  &.  MiinJ.  Rep.  455. 

Matter  which  would  have  been  a  good  defence  in  an  action  by  A.  against  B.  can- 
not afterwards  be  made  the  subji-ct  of  a  suit  by  B.  against  A-  White  v.  Ward  et  al. 
9  Johns.  Rep.  232.     Vide  Jones  v.  Scriven,  8  Do.  453. 

Money  paid  under  an  award,  cannot  be  recovered  back  in  an  action  for  money 
had  and  received.     Buckley  v.  Steivart,  1  Day's  Rep.  1  jO. 

An  action  on  the  case  will  not  lie  for  obt^iininga  decree  by  false  and  forged  evi- 
dence, such  decree  being  still  in  force.     Peck  v.  Woodbrldge,  3  Day's  Rep.  30. 

Sowhere  an  actioa  was  brought  in  JVew  York,  for  suborning  a  witness  to  swear 


Qg  RECORDS. 

Chap.  II.  s.  1.  still  the  law  will  not  permit  liiiii  to  recover  back  money  so  paid 

Ch^r^vnons.' '"  ^^^  course  of  a  legal  proceeding.     It  was  indeerJ  held  in  one 

______  case,(l)  that  where  money   had  been  recovered   against   con- 

(i)Mos.stJ.  science  in  a  Court  not  of  record,  an  action  as  for  money  had  and 
received  might  be  brought  to  recover  it  back  ;  t 
of  this  case  has  been  since  much  questioned. [2) 


MHc'aibn  2  received  might  be  brought  to  recover  it  back  ;  but  the  authority 

Burr.  1009.  ^  o  '  „ 


(2)  VIrle  2  H 
Black.  414. 
7T.Rep.2C9 


falsely  in  a  cause  in  Connecticut,  wlien  by  judgment  was  givr-n  against  him,  con- 
trary to  the  justice  of  (he  casi-,  it  was  held  that  the  action  would  not  lie.  DifP-rent 
reasons  were  given  by  the  Judges  ibr  their  decisions.  Smith  v.  Leu-is,  3  Johns.  Hep. 
157. 

Foreign  judgments  are  never  re-examined,  unless  the  aid  of  our  Courts  is  asked 
to  curry  them  into  ffTcct,  by  a  direct  suit  upon  the  judgment,  ibid. 

The  record  of  a  judgment  in  one  State  is  not  only  evidence  that  the  judgment 
•\vas  rendereil  but  conclusive  evidence  of  the  right  which  it  has  decided.  Greeny. 
Sarmiento,  \  Peters''  Rep.  74.  Fields-.  Gibbs  et  al.  ifuil.  155.  Pepoon  v.  Jenkins, 
2  Johns.  Cas.  119.  Rush  v.  Cobbett,  2  Do.  256.  Blwidale  v.  Bahcock,  1  Johns. 
Rep.  517.  Kip  V.  Brigham  et  ul.  0  .Mns.  Rep.  158.  S.  C.  7  Bo.  168.  Cros-.vell  v. 
Bijnies,  9  Do.  287. 

Q«<»7'f,  If  from  the  record  it  apie^irs  that  defendant  h;\d  no  opportunity  to  make  a 
defence.  1  Peters'  Re/).  8.>.  But  if  dtfeiidant  was  fioliced,  and  the  Court  had  ju- 
risdiction, it  is  conclusive.  Borden  \.  Fitch,  \i  Johns.  Rep.  1'21, 

Sed  contra,  Bartlelt  v.  Knight,  1  J\Iass.  Rep.  401.  Buttrick  etux.  <Jc.  v.  Al- 
len, 8  Do.  273.     Bissell  v.  Biiggs,  9  Do.  462.  Tilton  v.  Gordon,  Adam's  Rep.  35. 

The  judgnu  ni  of  a  Court  of  another  Stat",  is  but  a  simple  contract  debt.  Hnbbell 
V.  Coudrtti,5  Johns.  Rep.  132.  It  is  but />r/;na_/hde  evidence  of  a  just  debt.  Tay- 
lor V.  Brifden,  8  Johns.  Rep.  175.  Hitchcock  et  al.  v.  Aicken,  I  Caines'  Rep.  460. 
Et  vide  Post  \.  JK'eaJie,  3  Do.  37.  Pawling  et  nx.  v.  Wilson  et  al.  exrs.  of  Bird, 
13  Johns.  Rep.  19'-'.  Kibbe  v.  Kibbe,  Kirb.  Rep.  119.  Borden \.  Fitch,\5  Johns. 
Rep.  121. 

Contra,  Carson  v.  Armstrong''s  exrs.  2  Dall.  Rep.  302.  Wright  \.  Towers,  1 
Browne's  Rep  apljendix.  1 . 

The  Sl;<tuie  of  LimifUions  is  a  good  plea  in  bar  to  an  action  brought  on  ajudg. 
ment  obtanied  in  Connecticut    HuhheU  v.  Condrey,  5  Johns.  Rep.  132. 

A  juifgment  In  a  Court  of  another  State  in  a  foreign  attachment,  is  not  conclusive 
evidence  of  the  debt,  in  a  suit  between  the  same  parties.  Plielps  et  al.  v.  Holker  et 
al.  1  Dull.  Rep.  261.  Betts  v.  Death,  Addis.  Rep.  265.  Et  vide  Kilburn  v. 
Woodworth,  5  Jolins.  Rep  37.  Robi7ison  v.  Ward's  exrs.  8  Do.  86.  Et  vide 
Fentons.  Garlick,  ibid.  152. 

■  A  record  of  a  former  recovery  is  onlv  pnma  facie  evidence,  which  may  be  repelled 
by  sh«  vviig  (hat  the  subsequent  suit  is  for  a  distinct 'lemand.  PliilUps  v.  Berick, 
16  Jolms.  Rep  1,37.  Et  vid.^  Yo%mg  v.  Black,  7  Cra7ich.  Rep.  567.  Snider  v. 
Croy.  2  Johns.  Rep.  "-I'l' .  Lawrence  et  al.  v.  Roberts,  ^Overton's  Rep.  236. 

A  jierson,  in  all  ens  s,  is  concluded  by  a  decree,  sentence,  or  ji<;igmeut  of  a  Cocri't 
of  cfinipetent  and  i  xdusive  jurisdiction,  whethei-  foreign  or  domestic,  in  a  suit  in 
■which  he  was  a  pai  ty,  in  all  fiituie  trials  of  the  same  question,  whether  it  arise  di- 
rectly or  coil'iterally,  provided  there  is  no  contract  to  the  contrary  ;  and  sucii  decree, 
&c.  is  concl'islvi-  not  only  of  the  rtght  it  estaltlislifS,  hut  of  llie  fact  which  it  de- 
eidf-s.  Barter  9t  al.  v.  The  jV.  Eng.  Jilar^  Ins.  Co.  6  .Mass.  Rep.  277.  Robin' 
son  et  ul  s.  Jones,  S  Do  536.  Thatcher  et  al.  exrs.  v.  Gammon,  12  Do.  26S 
Smith  V.  Whiting,  11  Do.  445. 


RECORDS.  go 

In  like  manner,  as  the  judgment  concludes  llie  defendant  from  chap.  ii.  s.  i. 
disputing  the  debt,  it  precludes  the  plaintitF  from  recovering  a','"'?"*''''*  '" 

larger  sum  of  money  than  has  been  awarded  him  ;  and  therefore  ' 

if  a  plaintiff  claiming  a  debt  composed  of  differentitems,  attempt 
to  prove  tlie  whole,  and  fail  as  to  part  of  it,  he  will  not  be  per- 
mitted at  a  future  time,  when  possessed  of  better  evidence,  to 
recover  that  part :  but  the  defendant  may  plead  the  judgment 
in  bar,  and  it  will  be  conshisive  evidence  for  him. (<y)  But  if  the 
plaintiff  never  attempted  to  give  this  part  of  his  demand  in  evi- 
dence he  will  not  be  estopped  by  the  record,  from  proving  that 
fact,  and  recovering  the  remainder  of  his  debt ;  though  the  de- 
claration in  the  first  action  contained  counts  adapted  to  that 
part  of  his  demand. (1 )  (r)  (^)  S^fldon  v. 
, _________  6  T.Rtp.  CO". 


A  ilecisioii  of  a  CouH  of  comiietent  jurisdiction  bfinsj  res  judicata,  is  conclusive 
and  binding  on  al!  other  Courts  of  concurrent  jurisdiction.  Simpson  v.  Hart  1 
Johns.  Cha.Rep.  91. 

But  if  -A  person  rcsidt'S  in  another  Stat",  wh^n  a  suit  is  instituted  there,  and  he 
have  notice,  and  the  Court  jui'isdietion,  a  judgment  in  such  suit  will  bf  crmclu!>ive 
agHinst  him,  in  the  Courts  of  any  other  State.  Jacobs  v.  Hall,  12  Mhiss.  Rep.  25.-:- 
Am.  Ed. 

(9)  Where  a  former  recovery  has  been  had  in  a  suit  in  which  the  plaintiff" counted 
-for  an  tntire  sum,  the  record  is  a  complete  bar  to  another  suit  brought  on  the  same 
contract,  to  recover  a  sum  included  in  the  7mrr.  of  tht;  first  suit, and  the  plainiiftwill 
not  bf,  permitted  to  prove  that  no  evidence  was  given  to  the  former  jury  in  support 
o^the  latter  claim.  Hess's  exr.  v.  Heebie, 6  Seig.  SJ  R.  Rep.  57.  Et  vide  Brock- 
■waif  V.  Kinney,  2  Johns.  Rep.  210.  Plainer  v.  Host,  11  Do.  530  Inuiu  v  Knox, 
10  Do.  365.  Jackson  ex.  d.  Van  Alen  v.  Ambler,  14  Do.  96.  Phillips  v.  Berrick, 
16  Do.  136. 

If  a  record  be  lost,  its  contents  may  be  proved  by  parol.  Wilcox  v.  Wray,  1 
Haijw.  Rep.  410. 

A  verdict  or  judgment  at  Law  against  the  plaintiff,  is  no  bar  to  his  remedy  in 
Equity,  foT- the  S3me  cause  of  action,  it  not  appearing  that  the  merits  of  the  case 
were  fully  and  faiily  tried  at  law,  and  the  case  st^ited  in  ih-  bills  and  supported  by 
proof,  being  such  as  to  entitle  him  to  equitable  relief.  Haivhins  v.  Depriest,  4  JUitnJ. 
Rep.  469.  Et  vide  Simpson  v.  Hart,  1  Johns.  Chii.  Rep  91. 

.  A  person  not  a  party  to  a  judgnent,  is  not  bound  bv  it,  in  laiv  or  equity,  merely 
en  the  ground  that  he  was  present  and  cross  examined  the  witnesses.  Turpinw 
Thomas,  2  //.  &  Mmif.  Rep.  139. 

A  recovery  will  not  ^fFect  the  rights  of  others  not  parties  to  the  suit.  JVewby  v. 
Blakey,  3  H.&  Miinf  Rep.  57.— Am.  Ed. 

(r)  So  if  in  a  former  action  the  plaintifi'joined  two  trespasses  in  the  same  count, 
and  on  motion,  the  Court  compelled  hira  to  elect  for  which  trespass  he  would  pro- 
ceed, and  proliibited  his  going  for  botii,  and  a  verdict  w.is  found  tor  him,  it  will  not 
be  a  bar  to  a  subsequent  action,  brought  tor  the  trespass,  which  he  wus  obliged  to 
abandon.  Snider  et.  al.  v.  Croy , '2  .Johns .  Rep  227.  Vide  the  remarks,  of  GiBSorr 
J.  mi  this  case  in  Hes.i's  exrs.  v.  Heebie.  6  Sersr.  ^  R.  Rep.  60. 

But  if  the  plaintifT's  demand  is  indivisible  in  its  nature,  several  suits  cannot  be 
maintained.  Farrington  et.  al  v.  Payne,  15  Joh7is.  Rep.  432.  Et\ide  Smith  v. 
Jones,  ibid.  229. 


wQ  RECORDS. 

Chap.  II.  s.  1.     When  a  judgment  as  to  personal  property  is  given /o/-  the  de- 
Ju'igments  in  fendant  on  the  merits  of  the  case,  it  precludes  the  plaintiff  from. 

Civil  Actions''       ,  .  r       1      1  1       -xi  •      ^1  c  r       ^• 

^,^_____  making  a  fresh  demand,  either  m  the  same  form  ot  action,  or  in 
any  other  of  equal  degree  :   and  therefore  where  A.   brought  an 
action  of  trover  to  recover  personal  property,  and  a  verdict  was 
given  against  him  on  the  merits,  this  verdict  was  held  to  be  con- 
clusive evidence  in  an  action  of  assumpsit  by  him  for  money  had 
(I)  Kitchen    and  received,  to  recover  the  money  produced  by  the  goods  ;(1) 
SBlacklsV.  for  though  a  different  form  of  action  it  was  still  one  of  the  same 
degree,  it  was  the  same  question  of  property,  and  the  judgment 
was  directly  on  the  point.     So  where  to  an  action  of  trespass  the 
defendant  pleads  to  the   merits,  and  on   demurrer  to  the  plea, 
judgment  is  given   for  him  ;  this  operates  as  a  bar  to  an  action 
„       ,     of  trover  for  the  same  taking,  and  may  be  pleaded  to  such  ac- 
case,6Cii  7.  tion,(2)  or,  perhaps,  according  to  the  modern  rules  of  pleading 
Ferraisv.  Ar-|^  that  action,  given  in  evidence  on  the  general  issue.(s)     But 
668,  S.C.       had  the  first  action  failed  through  any  error  or  misconception  of 
(3)  Lechmerethe  form  of  action,  or  misprison  in  the  pleadings,  then  the  judg- 
V.  Topiady,    ment  would  not  have  barred  the  subsequent  action  ;(3)  but  the 
plaintiff  might,  in  case  it  had  been  specially  pleaded,  have  tra- 
versed the  averment  of  the  cause  of  action  being  the  same.(i) 

The  cases  above  referred  to  arose  on  questions  respecting /jer- 
sonal  property,  but  the  same  rule  holds  in  actions  which  concern 


As  where  several  actions  of  trover  were  brought  for  the  tortious  taking  of  several 
articles  ai  the  same  time,  and  by  one  act  several  suits  cannot  be  maintained.  Phil- 
lips V.  Berrick,  16  Johtis.  Rep.  1.36. 

But  a  recovery  by  the  plaintiff  in  a  former  action,  apparently  for  the  same  cause, 
i-i  prima  facie  evidence  that  the  demand  hart  been  tried,  but  not  conclusive,  and  the 
plaintiff  may  shew  that  it  was  a  different  one.  ibid.  Et  vide  De  Long  v.  Stanton, 
9  Johns.  Rep.  .^S.   Wheeler  v.  Van  Hunton,  12  Do.  311. 

Where  a  debt  was  rejected  as  a  set-off,  on  the  ground  of  its  not  being  due,  it  was 
held,  no  bar  to  a  subsequent  suit.   Bull  v   Hopkins,  7  Johns.  Rep.  22. 

A  judgment  for  the  defendant,  upon  pleadings  not  going  to  l\\e  foundation  of  the 
action,  is  no  bar  to  the  plaintiff's  bringing  anotiier.  Lane  v.  Harrison,  6  Alunf.  Rep. 
573. — Am.  Ed. 

(s)  A  verdict  in  trespass  dc  bonis  asportatis,  is  a  bar  to  an  action  of  assumpsit  for 
the  price  of  the  same  goods.     Rice  v.  Ki)ig,  7  Johns.  Rep,  20. 

A  judgment  against  one  of  two  joint  trespassers,  without  satisfaction,  is  not  a  bar 
to  an  action  against  bis  co-trespasser,  for  the  same  tiespass.  Sheldon  v.  Kibbe,  3 
Con.  Rep.  214. 

A  recovery  in  trespass  is  not  a  bar  to  an  action  oi  detinue,  unless  the  damages  in 
trespass  were  given  for  the  property.  Belch  v.  Holloman,  2  Hay-M.  Rep.  328. 
— Am.  Ed. 

(<)  A  judgment  on  a  non-suit,  before  verdict,  is  no  bar  to  another  action  for  the 
same  cause.  Morgan  et  at.  v.  Bliss ^  2  Mass,  Sep,  113 — Am.  Ed. 


RECORDS.  y£ 

real  estates.     If  a  dispute  arise  respecting  lands,  and  any  factChap.  ii.  s.  i. 
come  directly  in  issue,  the  finding  of  a  jury  on  that  fact  is  re- ^"^'j^"!^"^*  '" 
ceived  as  evidence  of  it  in  any  future  dispute  between  the  same  __«_,«._ 
parties  or  others  claiming  under  them,  though  in  respect  of  other 
lands  ;(1)  and  if  in  an  action  of  trespass,  the  right  to  an  ease- 
ment in  land,  or  to  any  part  of  the  land  itself,  be  put  on  the  re- 
cord, traversed,  and   found  against  the  party  pleading  it,  such 
finding  is  conclusive  against  the  right,  and  if  the  same  plea  be 
pleaded  to  another  action,  may  be  replied  by   way   of  estop- (i)  Lewis  r. 
pel.(2)  (t<)     But  though  a  judgment  in  one  action  is  conclusive ^^^^f^^' y^l^^^' 

N.P.232,S.C. 

called  Sher- 

(?/)  Where  the  defendant  in  ejectment  claimed  title  from  the  person  whose  land  winv.Clarges. 
was  bought  by  the  plainlift'  at  a  Sheiiff's  sale,  the  defendant  is  estopped  to  deny  the 
title  ol  such  person.     JMurphy  v.  Barnett,  I  Car.  Luiv.  Repos.  106.  (2)  Outram  r. 

All   instrument  not  under  seal,  cannot  be  pleaded  by  way  of  esio/)/>e/.     ZJaw's  t.  More  wood, 
Tyler,  18  Johns.  Rep.  490.  3  East,  346. 

If  a  grantor,  after  extcuting  a  deed  of  conveyance,  receives  other  titles  to  the  es- 
tate, he  and  his  heirs  are  estopped  by  the  first  deed.  Massie  et  al.  v.  Sebastian  et 
al.  4  Bibb's  Rep.  436. 

A  deed  executed  by  husband  and  wife,  with  covenant  and  warranty,  does  not  es- 
top  the  wife,  in  an  action  of  ejectment  against  her,  after  the  death  of  her  husband, 
from  setting  up  a  subsequently  acquired  interest  in  the  same  lands.  Jackson  ex  d. 
Clowes  V.  Vanderheyden,  \7  Johns.  Rep.  167. 

A  person  under  whose  privity  and  direction  a  Marshal's  sale  is  made,  is  estopped 
from  controverting  the  sale  so  far  as  relates  to  any  interest  he  possessed.  Willing- 
V.  Bro-wn,  7  Serg  &  R.  Rep.  467. 

"Wh'  rr  the  Legislature,  by  a  public  resolve,  liad  declared  that  a  certain  monu- 
ment was,  and  was  considered,  as  the  one  mentioned  and  intended  in  an  ancient  In- 
diaji  deed,  under  which  a  title  was  derived  to  certain  proprietors,  the  Common- 
wealth was  estopped  from  afterwards  shewing  that  such  monument  was  not  the  one 
intended  in  such  deed.  Commoniuealtk  v.  The  Pijepscut  Proprietors,  10  JMa&s, 
Rep.    15. 

If  the  principal,  in  a  letter  of  attorney  under  seal,  give  it  a  false  anterior  date  for 
the  purpose  of  legalising  prior  acts  of  the  attorney,  he  is  estopped  to  prove  or  aver 
that  it  was,  in  fact,  executed  at  a  subsequent  period,  JMillikin  v.  Coombs,  1  Green. 
Rep.  343. 

A  recital  in  a  will  is  an  estoppel  to  parties  claiming  under  the  will.  Denn  ex  d. 
Coldeny.  Cornell,  S  Johns.  Cas.  174. 

A  partition  deed  operates  as  an  estoppel  between  the  parties  ami  persons  claim  = 
ing  under  them.  Jackson  ex.  d.  Ostrander  et  al.  v.Hasbrouck,  i  Johns.  Rep.  331. 

No  parly  IS  technically  estopped  by  a  conveyance  under  the  Statute  of  Uses.  JacA-- 
son  ex.  d.  Jones  et  al.  v.  Brinckerhoff,  3  Johns.  Cas.  101. 

A  stranger  or  third  person,  cannot  avail  himself  of  an  estoppel  by  a  mere  writing 
or  matter  in  pais.  ibid. 

One  who  is  not  bound  by,  cannot  take  advantage  of,  An  estoppel.  Lansing  y. 
JMontgotnery,  2  Johns.  Rep.  382. 

If  an  executor  or  administrator  confess  a  judgment,  or  suffers  one  by  default,  he 
is  estopped  from  denying  assets,  to  the  extent  of  that  judgment,  as  far  as  regards  the 
plaintiff  therein.     Ruggles  et  al.  v.  Sherman,  14  Johns.  Rep.  446. 

By  accepting  a  deed  conveying  ground,  adjoining  an  alley  and  court  together  with 
the  use  of  th^  all<:-y  in  common  with  the  grantor,  "  and  his  teriants  and  occttpiem 
of  the  adjoining  ground  as  also  of  his  {the  grantors)  other  ground  bounding  on  the 


-o  RECORDS. 

Chap.  II.  s.  1.  evidence  in  all  others  of  the  same  degree,  it  does  not  operate  as 
Judgments  in  ^  ^.^^,  ^^y  ^^^y  yti^gp  of  a  higher  nature  tliaii  that  in  which  it  was 

Civil   Actions      .  ,.,,..  ,  i       •  i  ^i  ■    j 

__________  given  ;(1  j  nor  will  it  in  any  case  be  conclusive,  unless  the  point 

(n  yi(l"Fei-^^  directly  raised  ;  and  therefore  the  judgments  in  mere  posses- 
rar's case,  sory  aclioHs,  where  the  defendant  pleads  the  general  issue,  and 
the  question  of  right  is  never  pointedly  in  issue,(2)  as  in  actions 
(2)  Sir  Fred,  for  disturbance,  ejectment,  &c.  though  a  degree  of  evidence,  as 
Havne"^titLiito  the  right,  are  never  so  conclusive  as  to  bar  other  actions  or 
3  East,  36.      preclude  another  defence  of  the  same  nature.(a;) 

MllfST).  Rose,  "^     ^  ,  ,  1  1      il        i    -^    •  -  ,        1 

ci  Taunt.  705  It  must  always  be  remembered,  that  it  is  against  the  party  to 
an  action,  or  one  claiming  under  him  only,  that  a  judgment  is 
€vidence.(i/)     Against  third  persons,  a  verdict  or  judgment  in  a 

said  court,"  the  grantee  is  estoppt-d  from  denying  the  right  of  way  through  the  al- 
ley, to  the  occupiers  of  ground  afljoming  the  court,  but  not  adjoining  the  alley; 
thougli  at  the  time  of  ihe  execution  ff  the  deed,  the  grantor  hail  no  right  to  grant  a 
right  of  passage  through  th<  alley  as  appurtenant  to  ground  adjoining  the  court,  but 
BOt  adjoining  the  alley.  And  although  the  grantor  and  grantee  could  not  grant 
»  right  of  way  (hrougli  the  alley,  as  appurtenant  to  any  ground  not  adjoii.mg  it 
■without  the  consent  of  the  owners  of  the  lai.d  on  the  opposite  side  of  the  alley,  yet 
the  estoppt-1  operates  on  one  who,  with  full  notice  on  the  face  of  his  deed,  purchas- 
ed land  on  that  siilt-  of  the  alley  of  the  grantee,  who,  after  the  e.Kecution  of  the  first 
jnentioned  deed,  hicarae  the  owner  of  the  land  on  both  sides  of  the  alley.  Erwing  v. 
Desilver,  8  Serg.  &  R.  Rep.  589. 

In  Evelet/iv.  Crunch,  i5  Mass.  Rep.  307,  it  was  decided,  that  a  party  will  be 
estopped  from  saying  that  he  acted  as  agent,  when  he  covenanted  iu  his  own  right. 
— Am.  Ed. 

{x)  In  an  action  of  ejectment  between  A.  and  Ji.  the  record  of  a  former  judgment 
in  an  action  of  trespass  betwet-n  B.  and  the  cestui  que  tnist  of  A.  is  admissible. 
Calhoun's  les.  v.  Dunning.  4  Dall.  R>'p.  120. 

The  record  ofa  recovery  in  an  ej'-ctment  against  a  covenantee,  is  not  conclusive 
against  the  covenantor,  if  no  noiice  has  been  given  him.  Leathery.  Poulteneif, 
4  Biim.  Rep.  356.  Contra  if  the  grantor  had  notice,  and  took  part  in  the  ti iai . 
JSemter  v   Fromberger,  4  TJall.  Rep.  436.  n. 

Quere,  If  due  notice  had  been  given  to  the  covenantor,  it  is  competent  to  him  to 
offer  other  evidence  than  that  which  was  given  in  the  ejectment,  to  prove  that  the 
title  of  the  plaintiff  was  not  derived  from  him.  Leather  v.  Poulteney,  4  Binn.  Repi 
356. 

In  an  action  for  mesne  profits,  the  record  of  the  recovery  in  ejectment,  is  conclu- 
sive evidence  of  defendant  being  in  possession  at  the  timexhe  suit  was  brottght,  but 
not  for  the  length  of  time.  Bailey  et  al.  v.  Fairplay,  6  Binn  Rep   450. 

In  an  action  of  warranty,  the  record  of  eviction  cannot  be  admitted  as  conclusive 
in  bar  of  the  warrantor  who  was  no  party  nor  privy  to  the  suit — it  may  be  admitted 
to  shew  the  fact  of  eviction.  Sanders  v.  Hamiltoii,  2  Hayio.  Rep.  226. — A^^.  Ed. 

(?/)  The  record  of  a  judgment  in  a  former  suit  between  A.  and  B.  is  inadmissible 
in  a  snbsequc'nt  suit  brought  by  C.  "who  was  not  privy  to  snch  judgment,  againpi  the 
same  defendant.  Coivlis  \  Harts  et  al.  3  Con.  Rep.  516.  Et  vide  Case  v.  Reeve 
etal.  2Johm.  Cha.  Rep.  81.  S.  C.  in  Er.  li  Johns.  R'p.  81. 

A  former  judgment  is  no  evidence  in  an  action,  except  between  the  same  parties 
or  privies.  Tabor  v.  Perrot,  2  Gall.  565.  Sanders  T.  J\I' Cracken,  Hardin's  Rep. 
260.  Edwards  v.  M'  Connel,  Cooke's  Rep.  305. 


KECOKDS.  y^ 

civil  case,  is  no  evidence  whatever  ;  for  the  first  principles  ofchap.  n.  s.  i. 
natural  iustice  require  that  a  man   should  be  heard  before  his:J,"'l«""f"'.''  '" 

.    ■'..,,,.-.,  X     L      L  1  11  1      ^'^"'  Actions. 

cause  IS  decided,  and  it  he  were  to  be  bound,  or  in  the  least  de-  _______ 

gree  prejudiced  by  a  verdict  where  he  had  no  opportunity  of 
cross-examining  the  witnesses,  it  would,  in  effect  be  overturning 
this  most  salutary  rule  of  jurisprudence. 

In  eeneral,  too,  the  benefit  of  the  rule  is  mutual  ;  and  there- (^ib.  law, 
fore,  if  in  a  suit  between  .^.  and  B.  a  verdict  pass  for  d.,  C.  who    *"   *' 
was  no  party  to  the  cause,  is  not  permitted  to  give  this  in  evidence 
against  B.  in  any  future  action  there  may  be  between  them  ;  for 

And  then  is  conclusive.  Shadburn  v.  Jennings,  1  Jllarsh.  Rep  179. 

A  recovery  against  an  executor  for  a  debt  due  from  the  testator,  is  not  evidence 
ill  an  action  brought  against  the  heirs  or  df^visees  to  charj<e  the  real  estate,  for  there 
is  no  piivitv  between  the  executor  and  the  heirs  or  devisees,  admitting  ihat  there 
may  be  bi'tween  the  executor  and  the  legatee  of  the  personalty.  JlIason''s  de-dsees 
V.  Peter''s  adms.  I  JSIunf.  Rep.  4.37. 

A  judgiTient  fecovertd  by  an  executor,  is  no  bar  to  an  action  brought  by  the  ad- 
ministrator dc  bonis  non  cum  testamento  annexo,  for  tlie  suroe  cause.  Grant  v. 
Chamberlain,  4  J\Iass.  Rep.  613. 

A  judgment  in  an  action  ol  formedon  in  descender,  is  a  good  bar  to  an  action  ot' 
entry  sur  disseisin  for  the  same  lands  by  the  same  demandant,  against  the  son  and 
heir  of  the  tenant  in  the  first  action,  if  such  judgment  exhibit  evidence  that  there 
was  a  trial  on  the  merits.  jLent  v.  Kent,  1C\Iass.  Rep.  338. 

The  record  of  a  suit  brought  before  a  justice  of  the  peace,  which  was  withdrawn 
before  judgment  by  the  plaintiff  who  paid  the  costs,  is  not  evidence  between  the 
same  parties,  to  shew  that  the  plaintiff,  at  the  time  of  the  institution  of  the  suit  be- 
fore the  magistrate,  did  not  consider  himself  entitled  to  recover  more  than  one  hun- 
dred dollars.  Siueigart  v.  Frey  adm.  8  Serg.  ^  R.  Rep.  299.  Nor  can  the  re- 
cord of  a  suit  brought  against  the  defendant  by  a  third  person,  who  was  one  of  se- 
veral joint  obligees  in  the  bond  upon  which  the  principal  suit  was  founded,  be  given 
in  evidence  to  shew  that  the  defendant  had  paid  to  him  part  of  the  money  for  which 
the  bond  was  given,  ibid. 

./5.  the  holder  of  a  promissory  note,  having  obtained  a  judgment  against  _B.  the 
drawer,  assigned  it  to  C.  who  issued  an  execution,  upon  which  the  defendant  was 
committed  to  prison,  and  afterwards  discliarged  under  the  Bread  Act,  as  a  poor  in- 
solvent debtor.  C.  then  sued  Jl.  for  money  paid  and  expended  on  the  judgment 
which  had  been  assigned  to  him,  and  in  this  suit,X).  the  endorser  of  the  note,  became 
special  bail.  iJe/J,  That  in  an  action  brought  by  .4.  the  holder,  against  Z).  tlie  endorser, 
the  record  of  the  suit  brought  by  C.  against ./?.  was  competent  evidence  to  shew  that 
the  endorsee  knew  that  the  note  had  not  been  paid  by  the  drawer.  J\l' Kinney  v. 
Craiuford,  8  Serg.  SJ  R  Rep.  351. 

Where  an  action  was  brought  against  an  attorney  for  the  loss  of  the  evidence  of 
the  debt,  the  defence  was  that  the  plaintiff  had  another  remedy  for  the  recovery  of 
his  debt,  which  he  had  successfully  pursued,  it  was  AeW  that  the  record  of  such  re- 
covery was  evidence  of  the  fact,  although  the  attorney  was  no  party  to  it.  Hunting- 
ton v.  Bummill,  3  Day^s  Rep.  390. 

A  stranger  to  a  suit  in  which  a  trustee  is  examined,  is  not  concluded  by  the  exa- 
mination, from  i)roving  that  there  were  other  facts  within  the  knowledge  of  the 
trustee,  which  he  did  not  disclose,  or  that  there  was  collusion  between  liim  and  the 
plaintiff"  or  defendant  in  such  suit.  Andrews  v.  Herring,  5  Ma^s.  Rep.  310.-- 
\M.  Ed. 


lyjj  KEOOKUS 

Chap.U.  s.  i.it  would  be  unjust  to  suffer  that  to  be  given  in  evidence  against 

ju.ignients  n.  ^  man,  from  which  he  could  not  have  derived   any  benefit  ;  but 

^  this  general  rule  is  liable  to  exception,  in  cases  where  a  man  is 

privy  in  estate  with  the  person  who  recovers  the  verdict,  for 

in  such  case  the  verdict   will   be  evidence  for  him,  though   he 

would  not  have  been  bound  by  it,  had  it  been  the  other  way. 

Thus,  if  there  are  several  remainders  in  the  same  deed,  and 

he  who  is  in  possession  recovers  a  verdict  in  an  action  brought 

against  him  for  the  land,  another  remainder  man  may  give  this 

verdict  in  evidence  in  another  action  against  him,  at  the  suit  of 

Viilc  Piker,  ^j^^  same  plaintiff';  for  had  the  verdict  been  against  the  termor, 

(_,r''Ucl),  '  .  ° 

iLoni.Rajtn.the  remainder  man  would  have  been  dispossessed.    So  had  there 
R's'hrt'ortli  V  been  a  verdict  for  the  tenant  for  life,  in  ejectment,  where  no  aid 
Couiii.'sof     can  be  prayed,  it  seems  that  the  reversioner  might,  nevertheless, 
llard.lVs.'     g^^s  t'^'^  verdict  in   evidence,  because  he  would  have  been  pre- 
judiced by  such  verdict,  for  his  reversion  would  have  been  turn- 
ed thereby  into  a  naked  right.     Of  this,  however,   Lord   Chief 
Baron  Gilbert  (page  35)  makes  a  quaere,  and  the  point  seems 
never  to  have  been  decided.* 

But  when  it  is  said  that  a  verdict  is  not  evidence  for  or  against 
one  who  is  not  a  party  to  a  cause,  it  is  not  to  be  understood  that 
a  man  who  merely  uses  the  name  of  another  for  his  own  benefit, 
is  not  bound  by  the  verdict  which  is  given  against  him.  Courts 
of  Justice  in  thtse  cases,  will  take  notice  who  is  the  real  plain- 
Giib.Law  tiff"  or  defendant  in  a  cause  •,{z)  and  therefore,  if  a  man  bring  an 
ejectment  in  the  name  of  another,  as  his  lessee,  he  being  in  fact 

•  In  Corn.  Dij;.  Erid.  (A.)  5,  it  is  said,  '<  A  verdict  for  or  against  the  plaintiff,  with 
prnof  of  the  evidence  by  him  given,  shall  be  evidence  in  an  action,  by  another, 
against  him  for  the  same  thing ;  as  in  an  action  by  a  common  cairier  for  goods  deli- 
>  vered  by  mistake,  a  verdict  for  or  against  the  plaintiff,  with  the  proof  by  him  given, 
shall  be  evidenc-  in  an  action  by  the  owner  against  the  carrier  for  the  same  goods." 
PerHoLT,  at  Guildhall,  14  W.  3.  Mr.  J.  Bulleu,'(N.P.  p.  243),  mentions  the  same 
case,  t)ut  it  seems  there  that  the  verdict  was  not  given  in  evidence,  as  the  verdict  of 
a  jury  determining  any  point,  but  :»s  evidence  of  a  confession  on  record  by  the  car- 
rier, ihat  he  had  the  goods  of  the  person  who  afterwards  so  brought  the  action, and 
to  lay  a  ground  for  proving  what  a  deceased  witness  swore  ;  though  it  should  seem 
that  th.  last  part  of  th'*  evidence  would  be  objectionable,  if,  as  we  have  heretofore 
seen  and  shall  have  occasion  to  state  hereafter,  the  objection  to  a  proceeding  inter 
alios  applies  to  depositions  as  well  as  to  records.  The  case  of  pyiiately  v.  Jltenheim, 
2  Esp.  J\''.  P  Cas.  608,  seems  also  to  have  been  decided  without  attending  to  this 
rule,  th.Jt  no  one  can  use  a  verdict  as  evidence  for  him  who  could  not  have  been 
bound  '>y  it,  had  it  been  the  other  «ay,  for  the  plaintiff  in  that  case  weuld  clearly 
not  have  been  in  the  least  affetted  by  the  verdict  had  the  issue  been  found  for  the 
defi  ndant,  unles5  he  had  been  one  of  the  creditors  on  whose  petition  the  issue  was 
granted,  which  appears  not  to  have  been  the  case. 

(;)  Vide  anlc— Am.  En, 


RECORDS.  T^^ 

ihe  real  plaintiff  in  the  cause,  the  verdict  is  evidence  for  ol  Cliai).  ri.  s.  i. 
ao-ainst  him,  in  an   eiectment   brought  in   the  name   (»f  another •}^'!?'.""y^'^^, 

plaintiff,  on  his  demise  ;   and  in  like  manner  a  recovery,  in  an ' 

action  of  trespass,  against  one  who,  justified  as  servant  of./?,  is  K;nnp,.g|j-— 
admissible,  though  not  conclusive  evidence  of  the  rightinan  ac- <J''j>e,Doiigi. 
tion  against  another  servant  of  A  for  a  similar  trespass.(a) 

There  is  another  exception  to  the  rule,  that  a  judgment  is  only 
evidence  between  the  parties,  or  those  claiming  under  them,  and 
that  is,  wherever  the  matter  in   dispute  is  a  question  of  public 
right  ;(6)  in  this  case  all  persons  standing  in  the  same  situation 
as  the  parties,  are  affected  by  it,  and  it  is  evidence  to  support 
or  defeat  the  right  claimed  ;  thus,  a  verdict  finding  a  customary 
mode  of  tithing,(l)  the  right  of  a  city  to  toll,(2)  the  right  of  elec-  Q)  Gi!b.  Law 
tion  of  a  churchwarden, (3)  or  schoolmaster,(4)a  customary  right 
of  common,  the  liability  of  a  parish  to  repair  a  particular  road, (5)  (2)  City  of 
a  public  right  of  way,(6)  or  the  like,  is  evidence  for  or  against  ciaike, 
the  custom  or  right,  though  neither  of  the  litigating  parties  are  Cnitii.  181. 
named  in,  or  claim  under  those  who  are  parties  to  the  record.     (3)  Berry  v. 

The  effect  of  verdicts  in  criminal  cases  on  the  civil  rights  of  p|*!,'k^'^VT  p 
the  parties  does  not  appear;  till  lately,  to  have  been  very  clearly  156. 
settled.  Hardly  any  thing  is  to  be  found  in  the  more  early  books /4\  l^,.j 
on  the  subject  but  loose  dicta,  from  which  very  little  informa-  BioHnkerw. 
tion  can  be  collected.     It  is  said  in  one  book,  of  very  little  aa-  §[[1,,,  i5_  ^"* 
thority,  that  "  the  verdict  in  a  civil  cause  may  be  given  in  evi- 
dence  in  a  criminal  cause,  but  not  vice  versa,  and  that  the  Court  Psmcras, 
said  they  would  hardly  grant  a  new  trial  where  a  verdict  might  T.'if''^'*  ^*** 
become  evidence  in  a  criminal  cause."(7)     From  this  note,  loose 
as  it  i,s,  it  may  be  collected  that  the  question  did  not  arise  in  the  ^^^J^,^^'' ""' 
case  then  before  the  Court ;  but  that  they  were  only  apprehen-  1  E«st,  355, 
sive  that  the  verdict  in  that  cause  might  be  made  the  founda- ,,-  „.  ,     , 

*  .    (7)  Richard- 

tion  of  a  criminal  proceeding.     This,  I  presume,  is  all  that  is  son  r..  Wil- 
meant  by  its  being  evidence  ;  for  it  could  never  be  thought  for  jg'J^'^j  g^g 
a  moment  that  it  would  be  so  of  the  criminal  factj  and  it  is 
plain  the  Court  did  not  proceed  on  the  ground  of  a  former  ver- 
dict in  a  criminal  case  having  been  offered  in  evidence  in  a  civil 
suit. 
Lord  Chief  Baron  Gilbert,  indeed,  makes  a  qusere,  whether  Gilb.  Law 

(a)  The  authority  of  (his  case  is  doubted.  Vide  Oufam  v.  Morevood,  3  East^s 
Hep.  346,  and  the  remarks  of  Spencek  J.  on  it  in  Case  v.  Reeve,  Z4  Johns.  Hep. 
82.— Am.  Ed. 

{b)  Verdicts  and  judgments  between  other  parties,  are  adrai.'sible  to  prove  a  pub- 
lic right  of  way,  only  where  the  part)  claims  by  pnscripii/m  ;  and  ni<-i.  ly  t'>  cor- 
roborale  the  presumption  of  a  grant.  Fowler  v.  Savage,  3  Con.  Sep,  90.— Am.  Ed. 


i^Q  RECOIIDS, 

Chnp.II.  s.  I. such  verdict  can  be  given  in  evidence,  because  the  party  could 

Ji\.tpuents      j^^j^  attaint  tlie  jury  as  he  could  in  a  civil  action  ;  but  there  are 
m  d'iiuin;ii  . 

Cases.  many  cases  where  verdicts  may  be  given  in  evidence  against  a 

— ~~— ~~*~  party  who  could  not  have  an  attaint;  such  are  all  those  which 
establish  customs  and  other  public  rights,  where,  as  was  just 
now  observed,  the  verdict  is  always  received  in  evidence  against 
persons  who,  being  neither  parties  nor  privies  to  the  cause,  could 
not  avoid  it  by  that  remedy  ;  that  therefore,  does  not  seem  to  be 
the  true  criterion  by  which  the  question  is  to  be  decided. 
Gibson  t).  One  other  case  occurs,  which  also  contains  little  more  than  a 

t^emirHa'rthvyic^wwij  though  Certainly  one  of  great  authority  on  the  subject: 
^11-  It  was  an  issue  directed  to  try  whether  certain  notes  of  hand 

were  forged  or  genuine  ;  and  on  the  trial  the  plaintiff  having 
read  the  deposition  of  a  deceased  witness  to  prove  the  hand- 
writing, the  defendant  offered  the  record  of  a  conviction  of  the 
plaintiff  far  forging  another  similar  note  to  which  the  same  wit- 
ness hid  also  sworn.  This  evidence  was  objected  to  by  Ser- 
jeant Parker,  who  contended  that,  "  it  was  a  rule  of  evidence 
that  no  record  of  a  criminal  action  could  be  given  in  evidence 
in  a  civil  suit,  because  such  conviction  might  have  been  upon  the 
evidence  of  a  party  interested  in  the  civil  action.^'  Lord  Hard- 
wicKE  is  reported  to  have  said,  that  the  general  rule  was  as  Mr. 
Sergeant  Parker  had  mentioned,  and  that  it  had  been  so  strictly 
kept,  that,  in  a  case  which  he  mentioned,  and  which  I  shall  pre- 
sently state,  the  Court,  on  a  question  of  legitimacy,  refused  to 
admit  in  evideiice  a  sentence  of  excommunication  in  the  Spiri- 
tual Court,  for  fornication  between  the  father  and  mother  of  the 
party  whose  legitimacy  was  impeached  ;  and  therefore  he  reject- 
ed this  conviction. 

This  case  of  Gibson  v.  M'Carty  is  not  very  accurately  re- 
ported, but  it  is  clear  that  the  evidence  which  was  offered  was 
properly  rejected  ;  for  the  conviction  was  on  another  transaction, 
which  oug'i\t  not  to  have  prejudiced  the  claim  before  the  Court. 
In  the  case  cited,  too,  the  judgment  of  the  Ecclesiastical  Court 
was  not  directlj  upon  the  point:   the  father  and  mother  of  the 
parly  might  have  committed  fornication,  and  yet  have  been  mar- 
Vide  post,      ried  previous  to  his  birth  ;  and  it  is  clearly  settled,  that  a  judg- 
ment is  not  evidence  of  any  fact  which  is  only  to  be  collected 
by  inferer^ce  fi'om  it.     That  this  was  one  ground  at  least  of  the 
determination,  appears  from  a  more  full  statement  of  the  same 
Hillyard  v.     case  by  the  nzkme  of  Hillyard  v.  Grantham  ;  though  it  must  be 
Graniham,     confessed  that,  \iy  the  manner  in  which  it  is  there  cited  by  Lord 
Hardwicke,  that  learned  magistrate  seems  to  have  adopted  the 
general  principle,  that  a  verdict  in  a.  criminal  case  cannot  be  evi- 


RECORDS.  ^y 

deuce  in  a  civil  suit.     His  Lordship  stated  the  case  to  be  a  trial  ciiai>.  ii.  s.  i. 
at  bar  on  an  issue  directed   out  of  the  Court  of  Chancery,  and  J"'!s'»"nis 

I  rm     J      1       •  1       !•,•        ^"' Criminal 

said  that  he  was  counsel  in  the  cause.     Ihat,  during  tiie  lite  ot  Cases. 


the  father  and  mother,  there  had  been  a  proceeding  against  both  — — - 

of  them,  in  the  Consistory  Court  of  Lincoln,  for  living  together 
in  fornication,  and  sentence  given  against  them  :  on  the  trial, 
that  sentence  was  oftered  in  evidence  to  prove  that  they  were 
not  married  ;  and  the  whole  Court  were  of  opinion  that  it  could 
not  be  given  in  evidence ;  because,  first,  it  was  a  criminal  mat- 
ter, and  could  not  be  given  in  evidence  in  a  civil  cause ;  next, 
that  it  was  res  inter  alios  acta,  and  could  not  aft'ect  the  issue.* 

But  they  held,  that  if  it  had  been  a  sentence  on  the  point  of 
the  marriage,  on  a  question  of  the  lawfulness  of  the  marriage,  it 
being  the  sentence  of  a  Court  having  proper  jurisdiction,  might 
have  been  given  in  evidence. 

There  is  also  another  A^si /*m<s  decision  of  Lord  Holt,  Hex  i:;.  Whit- 
which  should  be  noticed  in  this  place.  A  man  being  prosecuted'"'''  ''  "  '^' 
for  a  fraud  in  obtaining  a  note  of  hand,  the  person  who  had  been 
defrauded  was  called  as  a  witness,  and  that  learned  Judo-e  re- 
jected  his  testimony  ;  assigning,  as  a  reason,  that  though  the  ver- 
dict could  not  be  given  in  evidence  in  an  action  on  the  note,  he 
was  sure  to  hear  of  it  to  influence  the  jury.  This  dictum  of 
Lord  Holt  is  open  to  two  constructions  ;  his  Lordship  might 
either  mean  to  say,  t!iat  in  no  case  could  a  jutigment  in  such  a 
prosecution  be  given  in  evidence  in  a  civil  action  ;  or  only,  that 
a  verdict  founded  on  such  evidence  as  ivas  then  ojffered,  would 
not  be  admissible;  and  with  this  latter  construction  agrees  Lord 
Chief  Baron  Gilbert,  who  says,  that  where  the  conviction  is  in  Gilb.Law.Ev. 
fact  founded  solely  on  the  evidence  of  the  party  interested  in  the  325^'  ^^ 
civil  suit,  the  record  cannot  be  evidence  in  it,  because  a  party  shall 
not  be  permitted  to  give  that  evidence  by  indirect  means  which 
he  would  not  be  heard  to  speak  as  a  witness  ;  and  though  the 
case  cited  by  Gilbert  is  silent  as  to  this  point,  and  only  proves 
that  the  description  of  a  party  in  an  indictment,  or  the  evidence 
then  given  by  a  witness,  since  deceased,  is  not  evidence  on  an 
appeal,  yet  from  what  was  said  by  Serjeant  Parker  in  the  case 
of  Gibson  v.  M'Carty,  it  is  plain  that  some  opinion  was  enter- 
tained in  Westminster  Hall  at  the  time  Gilbert  wrote  as  to  this 
distinction.     If  we  suppose  that,  in  that  case,  the  party  inter- 


•  As  to  this  point,  see  the  several  cases  in  s  2,  et  seq.  wii  ch  clearly  show,  ihat 
wh''ie  a  marriage  comes  ilirectly  In  issue  in  the  Ecclesiasiical  Couj-i,  it  is  evidence 
jgainst  tlie  issue  ;  and  what  is  subsequently  said  by  Lord  H.  hiraselF,  in  this  very 
cast,  shows  thai  this  would  have  been  no  objection. 


f^Q  RECORDS. 

Chap.  II.  s.  1.  ested  had  been  in  fact  examined  as  a  witness  on  the  prosecution, 
in"cvuaiuld     ^^  explains  tlie  whole  ;  and  sliews,  that  on  this  ground  also  the 
Cases.  evidence  might  have  been  rejected,  without  establishing  as  a  ge- 
—  neral  proposition,  that  in  no  case  could  such  a  conviction  be  evi- 
dence.    Thai  a  verdict  cannot  be  used   by  the  party  on  whose 
testimony  it  nas  obtained,  as  evidence  for  him  of  the  fact  found 
(1)  Bartlet  v.  bj  it,  is  now  clearly  settled  by  several  modern  cases.    In  one(l) 
i)ost.^'^°' '     t^^^  P^i'ty  attempted  to  avail  himself  of  the  conviction  by  a  sup- 
plemental   bill,  but  failed   of  success  ;  and  in  another, (2)  the 
IJostoM,^^'      Court  held  the  party  injured  to  be  a  competent  witness   on  the 
4  East,  373.    indictment,  on  the  express  ground,  that  the  conviction  would  be 

no  evidence  in  support  of  his  civil  rights. 
Giib.  Law  But  it  is  said  also  by  Gilbert,  that  if  the  party  was  not  ex- 

j].  amined  as  a  witness  on  tlie  prosecution,  or  his  evidence  formed 

a  part  only  of  that  given  to  the  jury,  the  verdict  in  the  criminal 
prosecution  may  be  evidence  in  the  civil  cause  ;  with  deference 
'to  so  great  an  authority,  I  cannot  help  observing,  that  it  seems 
rather  contrary  to  the  general  principle  of  rejecting  all  evidence 
of  an  interested  party  to  permit  a  verdict,  where  his  testimony 

I  formed  any  part  of  the  consideration  of  the  jury,  to  be  given  in 
evidence  ;  for  it  seems  difficult  to  draw  the  line,  and  say  how 
far  they  might  be  influenced  by  his  testimony,  or  by  that  of  any 
other  witness.  It  is  further  to  be  observed,  that  no  such  dis- 
tinction was  made  in  the  case  of  Bartlet  v.  Pickersgill,  the  con- 
(viction  in  which  case  was  founded  on  other  evidence  besides 
that  of  the  plaintiff;  and  in  several  recent  instances(3)  it  has 
J  i_ani  D  11  ^^^^  decided,  that  in  no  case  where  the  party  is  examined,  can 
Haihtrway  t).  the  conviction  be  received  as  evidence  for  him  of  the  fact  found 

Brown. ib. 151t ,       ., 
Burci  n  v.        ^y  it. 


Bmwiiing,    I     Having  thus  mentioned  the  several  cases  which  seem  to  shew, 

1  Taunt.  520.'  ,     ^  ^,      "^     .  ,  ,  .  f    •     ■  j     •     -ki 

that  the  evidence  we  are  speaking  of  is  in  no  case  admissible, 
opposed  as  they  are  by  the  dictum  of  Gilbert,  I  shall,  in  ad- 
dition to  his  authority,  refer  to  the  cases  which  daily  occur  of 
convictions  on  proceedings  in  rem  in  the  Exchequer,  and  to  what 
(;4)Bul.  N.P.  is  said  by  Mr.  Justice  Buller,(4)  who  lays  it  down  as  a  gene- 
^*^*  ral  rule  without  any  limitation,  that,  "a  conviction  in  a  Court 

oi  criminal  jurisdiction  is  conclusive  evidence  of  the  fact,  if  it 
afterwards  come  collaterally  in  controversy  in  a  Court  of  civil 
jurisdiction  ;  as  suppose,  says  he,  the  father  convicted  on  an  in- 
dictment for  having  two  wives,  this  would  be  conclusive  evi- 
dence in  an  ejectment  where  the  validity  of  the  second  mar- 
riage was  in  dispute  :  but  he  adds,  the  conviction  would  not  be 
conclusive,  so  as  to  bar  the  party  in  a  writ  of  dower  or  appeal, 
where   the  legality  of  the  marriage  came  in  question,"  though  it 


N 


RECORDS.  yg 

would  be  prima  facie  evidence  on  a  plea  of  ne  ungues  accoiiple  cha\t.  ii.  s,  i. 
before  the  Bishop.     The  reason  why  the  verdict  would  be  con-"''"'"'."''"**, 
elusive  in  the  ejectment,  and  not  so  beiore  the   Bishop,  1  con-Cwses. 

ceive  to  be,  because  in  the  one  case  the   question   of  marriage  ~- — 

would  arise  onlv  collaterally  and  incidentally;  but, in  the  other, 
it  would  come  directly  in  question  before  a  Court  to  whose  pe- 
culiar jurisdiction  the  trial  of  it  belonged,  and  who  could  not  be 
ousted  of  that  jurisdiction  by  the  finding  in  any  other  Court.  It 
must,  however,  be  observed  here,  that  no  authority  is  cited  by 
Mr.  J.  BuLLER,  which  proves  that  such  a  verdict  would  be  con- 
clusive evidence  in  the  action  of  ejectment.  The  authority  re- 
ferred to  (3  3Jo(l.  164.)  only  shews  that  the  Court  prohibited  a 
suit  in  the  Spiritual  Court,  causa  jactitalionis  maritagii*  brought 
bj  a  man,  who  was  convicted  of  bigamy,  against  his  second  wife, 
who  pleaded  the  conviction,  and  applied  for  a  prohibition  ;  all 
that  was  said  about  the  effect  of  such  a  conviction,  on  the  plea 
of  ne  ungues  accouple,  was  in  the  argument  of  Zevrnz  as  counsel, 
but  nothing  appears  to  have  been  said,  either  at  the  bar  or  by  the 
bench,  as  to  its  effect  in  an  ejectment. 

But  it  is  agreed,  that  had  the  party  been  acquitted,  this  would 
have  been  no  evidence  at  all,  in  support  of  the  second  marriage, 
for  it  proves  no  fact  ;  the  defendant  might  have  been  acquitted, 
because  he  had  reason  to  believe  his  first  wife  was  dead,  or  for 
many  other  reasons,  without  supposing  the  second  a  legal  mar- 
riage. In  like  manner,  when  there  has  been  a  judgment  for 
the  Crown  on  an  information  in  rem  in  the  Exchequer,  it  has 
been  held  to  be  conclusive  evidence  to  vest  the  property  in  the 
Crown,  and  not  to  be  controverted  in  any  civil  action  ;  but  a 
judgment  of  acquittal  does  not  seem  to  have  so  strong  an  ope- 
ration in  favour  of  the  party.! 

•  This  case  is  very  obscurely  stated  in  the  report.  When  I  first  read  it,  I  con- 
ceivfd  that  the  verdict  was  offered  to  disprove  the  second  marriage,  by  showing  the 
illegality  of  it;  and  therefore  concluded  thit  the  reporter  was  mistaken  in  staling  it 
to  be  a  cause  of  jactitation  ;  and  that  in  fait  it  must  have  been  a  suit  for  restitution 
of  marital  rights,  or  some  other  cause  wherein  the  person  suing  claimed  to  be  the 
husband;  but,  on  further  investigation,  the  verdict  seems  to  have  been  introduced 
as  evidence  of  a  marriage  de  facto  having  taken  place  with  the  second  wife.t 

t  Scott  V.  Shearman,  2  Bfitck.  ^77.  In  an  action  of  trespass  for  breaking  the 
plaintiff's  house  and  seizing  his  goods,  which  consisted  of  a  quantity  ot  geneva,  the 
defendants,  who  were  custom  house  officers,  proved  a  copy  of  a  record  of  condem- 
nation in  the  Exchequer  oi  the  same  geneva,  and  the  Court,  afler  solemn  argument, 
held  this  to  be  conclusive  evidence  in  favour  of  ilie  defendants,  and  not  to  be  con- 
troverted.    But  a  condemnation  before  the  Commissioners  of  Excise,  does  not,  il 

%  Vide  the  best  report  of  this  case  in  Comberb,  liep.  72. — Am.  E», 


so  RECORDS. 

Chap.  II.  s.  1.     I  shall  conclude  this  part  of  the  subject,  by  mentioning  one 

ilrcHmili'ai     '^°''^  ''^^^  applicable  to  verdicts  ;   and   that  is,  that  until  final 

Cases.  judgment  is  entered  upon  them,(l}  they  are  no  evidence  of  the  fact 

-  having  been  legally  decided,  for  if  the  postea  only  be  produced, 

niPitton-u. 

Waller, 

1  Stra.  iGl.  has  been  said,  conclude  the  party  from  disputing  the  property  of  it  in  an  action  for 
the  seizure,  fleiishaiv  v.  Pleasance,  2  Black.  1174;  sed  vide  Terry  t.  Hunting- 
ton, cited  1  Ld.  Ruijm.  471 ;  Fullon  v.  Fotch,  Carth.  346 ;  Cas.  Temp.  Bolt,  287  5 
Roberts  v.  Fortune,  1  Hargr.  Law  Tracts,  468  ;  and  the  general  principles  stated, 
post.  In  Hart  v.  jWjSTamara,  C.  P.  Sittings  after  Easter  Terra,  1817,  (cited  4  Pri. 
fix.  Rep.  154,)  Ld.  Ch.  J.  Gibbs  held,  that  a  condemnation  of  rum,  as  being  adul- 
terated, was  evidence  against  llie  plaintiff,  though  such  condemnation  took  place 
while  the  rum  was  in  the  hands  of  the  defendant. 

Cooke  V.  S/ioIl,  5  T.  Rep.  255.  Trover  for  several  pipes  of  wine.  The  plaintiff 
being  a  wine  riiei-chant,  had  purchased  these  pipes  of  Hicks,  which  the  defendant 
seized  for  want  of  a  pernnit ;  and  it  appearing  to  be  a  malicious  seizure,  the  jury 
gave  a  verdict  for  the  plaintiff,  with  150/.  damages.  The  defendant  had  prosecuted 
this  seizure  in  the  Court  of  Exchf^quer,  and  the  record  oi acquittal  was  read  in  evi- 
dence. The  defendant  insisted  under  the  circumstances  (which  it  is  unnecessary 
here  to  state)  that  the  permit  was  out  of  time  ;  and  the  Judge  was  of  that  opinion  ; 
but,  it  being  suggested,  that  a  different  determination  had  been  made  in  the  Court  of 
Exchequer,  he  saved  the  point,  wiili  liberty  to  enter  a  vetdicl  for  the  defendant  if 
it  should  be  adjudged  with  him. 

The  counsel  was  proceedir.g  to  argue  the  cause  on  the  merits,  when  the  Court 
suggested  a  iloubt  upon  another  ground,  and  Lord  Kesyox  said,  that  he  conceived 
the  judgment  of  acquittal  in  rem  was  conclusive  as  to  the  question  of  the  illegality  of 
the  seizure,  and  precluded  all  reasoning  upon  the  construction  of  the  permit  ;  and 
however  he  might  doubt  whether  the  Court  had  put  a  true  construction  upon  the 
effect  of  the  instrument,  yet  he  could  not  help  thinking  that  the  judgment  of  acquit- 
tal was  conclusive  as  to  the  illegality  of  the  seizure  which  was  the  subject  of  the  pre- 
sent action.  That  it  seemed  to  be  taken  for  granted,  in  Lord  Mansfield's  time 
that  a  judgment  of  condemnation  in  rem  was  conclusive  between  the  parties. 

On  tills  the  rule  was  discharged  :  but,  on  a  subsequent  day,  Leicester  moved  to 
open  the  rule  again,  stating  that  the  ground  on  which  they  had  before  decided,  was 
not  clearly  settled,  and  therefore  he  wished  to  have  an  opportunity  of  arguing  it,  for 
that  there  was  a  distinction  as  to  the  effect  of  a  judgment  of  acquittal  or  condemna- 
tion in  rem  in  the  Exchequer  ;  the  former  was  not  conclusive,  though  the  latter  was. 
Bui.  JV.  P.  245.  But  independently  of  that  question,  he  observed,  that  the  case 
had  been  saved  on  a  different  point  which  was  stated  in  the  report,  namely,  the 
construction  of  the  permit.  Upon  this  the  matter  was  ordered  to  stand  over, 
and  when  it  came  on  again,  Boiver,  for  the  plaintiff,  confined  his  observations  to  the 
effect  of  the  judgment  of  acquittal  in  the  Exchequer,  and  pressed  the  other  side  to 
consent  to  have  th'-  whole  matter  stated  on  the  record  :  but  this  being  objected  to, 
the  Court,  though  they  expressed  a  wish  that  the  parties  would  consent  to  have  the 
question  respecting  the  judgment  of  acquittal  put  upon  the  record,  as  it  was  a  point 
of  great  importance,  said,  that  at  present  they  could  not  go  out  of  the  report,  which 
confined  the  question  to  the  only  point  made  at  the  trial  concerning  the  construction 
of  the  permit,  on  which  no  doubt  could  be  entertained,  but  that  the  time  was  out 
when  the  seizure  was  made,  and  so  there  must  be  a  verdict  for  the  defendant.  Rule 
absolute. 

In  the  following  case,  however,  a  sentence  of  acquittal  was  considered  as  conclu- 
sive. In  an  action  of  assault  and  battery,  the  defendant  justified  as  an  officer  in  the 
army  for  disobeying  orders,  and  gave  in  evidence  a  sentence  of  a  council  of  war  upon 
a  petition  against  him  by  the  plaintiff,  and  the  petition  being  dismissed  by  the  sen^ 


RECORDS.  gi 

it  does  not  appear  that  the  jiulginent   might  not  have  been  ar-chap.  lis.  i. 
rested,  or  a  new  trial  granted, (c)  but  the  postea  is  good  evidence     V.  i. nets. 

to  sl)ew  that  a  trial  was  had  between  the  same  parties,  so  as  to  "~ 

intfuduce  an  account  of  what  a  witness  who  is  since  dead,  swore 

at  that   trial,  tor  which  purpose  even  a  nonsuit  is  evidence.     A  ^^^'!^**^""'^i"'^ 

verdict  on  an  issue  out  of  Chancery,  hov/ever,  is  full  proof  ofN.  p.  234, 

the  fact  it  tinds,  though  no  judgment  is  entered  upon  it,  for  the 

decree  is  equal  proof  that  the  verdict  was  satisfactory,  and  stands 

in  force. (c/) 

Writs  issuing  out  of  the  Courts  at  Westminster,  are  not  con-  Proof  of 
sidered  as  records  till  returned  and  filed  in   the  Court ;  when- 
ever, therefore,  a  writ  is  the  gist  of  the  action,  it  must  be  filed,  GH'.  LawEv. 
and  a  copy  of  it  talten  from  the  record  ;   inasmuch  as  the  party  ^^^^  ""^  '    ' 
is  to  have  the  utmost  evidence  the  thing  is  capable  of,  for  it  can- 
not become  the  gist  of  an  action  till  it  is  returned  ;(e)   but  when 

tence,  if  was  holdeii  to  l>c  conclusive  c-viik-nce  I'lr  the  clet'-iidMi.t.  iMiie  v.  Dcg- 
berg,  ff.n  W.  3.  B^il.  JY  P.  224.  S.c  f.lso  Vin  EHd.  {A.  B.)  ■^l-l,  wlieie  Ba- 
ron PuirE  is  said  to  have  admitiid  an  acqxiiUal'n\  the  Exchequer  as  conclusive. 

For  the  several  instances  in  which  the  judgment  ofa  Couit,  whetlkT  of  Rt^cord  or 
otherwise,  shall  be  admitted  as  evidence,  and  to  whiU  extent,  se-e  post. 

(c)  The  rule  of  the  text  was  recognised  in  the  case  oi  Ridgely  et  al.  v.  Spencer, 
2  Binn.  Rep.  70. 

In  JVew  York,  a  verdict  in  an  action  before  a  justice  of  the  peace,  is  evidence, 
without  producing  the  judgment;  for  the  justice  is  bound  to  give  judgment  on  the 
verdict,  and  can  neither  arrest  it  nor  grant  a  new  trial.  Felter  v.  ^MuUiner,  2  Johns. 
Rep.  181. 

Ill  Pennsylvania,  2i  verdict  in  a  former  ejectment,  is  evidence  against  the  defen- 
dant, although  no  judgment  has  been  entered,  if  he  has  acquiesced  in  it,  bv  pa\ing 
the  costs  and  delivei-ing  the  possession.  Sha^ffer  v.  Kreitzer,  6  Binn.  Rep.  430. — 
Am.  Ed. 

(</)  No  one  can  take  the  benefit  of  a  verdict  or  deposition,  who  would  not  have 
been  prejudiced  by  it,  had  it  been  contrary.  Boudereau  v.  Montgomery,  C.C.  Vov. 
1821,  jr  S  Rep. 

Ill  dein  (m  bond  against  ^.  the  principal,  and  B.  and  C.  sureties,  an  cioarj  under 
a  reference  between  .i.  and  the  obligee,  is  not  evicf  iice  to  prove  the  amount  <lue  by 
^.     Simonionv.  Bouclier  et  ul.  C   C.  Jan.  1811,  Ji.  S.  Rep. 

Where  a  verdict  i-.  had  ;<paiiist  a  Sheriff  for  th  escap.-  of  a  prisoner  who  had 
given  Sf-curity  for  the  liberties  of  the  jmI,  ill  an  action  b>  the  SherifFon  the  bond, 
the  poitea,  without  the  judgment,  is  evid-  nee  to  prove  the  recovery  and  actual  da- 
mages, at  least,  it  not  the  escape.     Kip  v.  Brighum,  7  Johns.  Rep.  168. 

On  a  bleach  of  covenant  against  mcUfnbrances,  the  po>,tea  in  an  action  of  eject- 
ment by  a  n)orig;igee  is  sufRcie'i.     ffiildo  v.  Lo7ig,  7  Johns.  Rep.  173. 

In  Foster  v.  Compter,  2  Stark.  Rep.  3fi4,  it  w:<s  held  thni  in  an  action  by  one  de- 
fendant ill  ussumpdt,  against  his  co-<Iefendant,  the  postea  was  evidence  to  pro^-  the 
amount  of  ilamagrb,  bi  t  the  einlorseinent  of  costs  with  the  .Vlaster'sa//»ca/(«r  on  the 
postea,  was  not  sufficient  ti>  entitle  the  plaintiff  to  recover  half  the  costs,  withotid; 
producing  the  judgment. — A  •..  Ed. 

(e)  It  seems  that  tlie  confession  of  the  plaintiff,  that  the  timber  was  taken  by  a 
bailiff  under  au  attachment,  is  not  sufficieut  evidence  of  the  existence  of  the  attack^ 

M 


82  RECORDS, 

Chap.  n.  s.  i.the  writ  is  onty  inducement  to  the  action,  the  fact  Of  its  having 

Verdicts,    issued,  may  be  proved  bv  the  production  of  the  writ  itself,  be- 

■~'*~"~"~  cause  by  possibility  it  might  not  be  returned,  in  which  case  we 

have  seen  it  is  no  record. 
Returns  of  When  a  writ  is  duly  returned  and  filed,  the  I'eturn  is  so  far 

\vnts.  evidence  of  the  facts  stated  in  it,  as  not  to  be  disputed  inciden- 

(i)Reaf.      tally  ;  and  therefore  if  the  Sheriff  return  a  rescue,(l)  or  a  sum- 
Eikiiis,  mons  on  a  vvrit  of  scire  faciasJZ)  the  parties  cannot  dispute  it  on 

I  Burr.  21'29.  ,  .  ,  /  \       i  • 

affidavits.     And  in  a  late  case,(3j  where  an  action  was  brought 

(2)  Besiv.     against  a  plaintiff  in  a  former  suit  for  maliciously  suing  out  an 

alias  fieri  facias  after  a  sufficient  levy  under  the  first;  the  She- 

(3)  Gyffbrd'i'.  j.jjpg  ,.eturn  endorsed  on  the  two  writs,  (which  were  produced 

Woodgate,  *■  \ 

II  East,  '297.  bj  the  plaintiff  as  part  of  his  case,)  wherein  the  Sheriff  stated 

that  he  had  forborne  to  sell  under  the  first,  and  had  sold  under 
the  second  at  the  request  of  the  now  plaintiff,  were  held  to  be 
prima  facie  evidence  of  the  fact  so  returned.  But  the  return  will 
not  be  even  prima  facie  evidence  of  any  fact  not  stated  in  it ; 
Catm-t).  and  therefore  a  return  to  a  fieri  /ados,  stating  that  the  Sheriff 
&  S^  599  ^^  ^^^^  levied  the  money,  does  not  prove  that  he  paid  it  over  to  the 
judgment  creditor,  so  as  to  charge  him  in  an  action  for  money  had 
and  received.;/) 

TOf-nt,  but  that  the  itcnrd  itself  oiiglit  to  be  produced.  Jeiuier  v.  Joliffe,  6  Johns, 
Rep.  9. 

The  confession  of  the  defendant  that  he  hail  been  served  with  a  subpesim,  is  not 
sufficient  evidence  of  the  fact,  if  the  writ  is  capable  of  being  produced.  Hasbrouck 
V.  Baker,  \Q  Do.  248. 

The  contents  of  a  writ  cannot  be  prored  by  parol,  so  long  as  the  writ  itself  or  a- 
copy  thereof,  is  cap-able  of  being  produced.  Bnish  v.  Tag^art,  7  Do.  19.  Et  vide 
Foster  V  Tndl,\<2  Do.ioQ. 

But  in  an  action  ot  debt  against  the  Sherift"  for  the  escape  of  a  prisoner  in  execu- 
tion on  a  ca.  sa.  parol  evidence  is  admissible  to  shew  the  issuing  of  the  ca.  sa.  its 
deliveiy  to  the  Sheriff,  and  the  arrest  of  the  party  thereon  ;  the  defendant  having 
neghcted  to  return  and  file  the  ca.  sa.  and  having  refused  to  produce  it  at  the  trial, 
after  notice  given.  Ilmman  v  Brees,  13  Johits.  Rep.  529. 

No  proceedings  ate  a  malterof  record  until  enrolled.  Crosivell  v.  Byrnes,  9  Johns. 
Rep.  SSr. 

An  ntry  on  the  record  of  the  award  of  a  writ,  does  not  conclude  the  party  from 
denying  the  fact,  and  shall  be  tvUd  per  pais.  Broivn  v.  Van  Deuzen,  10  Johns  Rep. 
51.  El  vide  Taylor  V.  Dandass,  1  Wash.  Rep.  94. 

The  entries  on  the  docket,  even  if  inconsistent  with  the  judgment,  are  inadmissi. 
ble  for  the  purpose  of  impeaching  it.  Southgatex.  Burnliam,  1  Greenl.  Rep.  369. — 
Am.  Ed. 

(/)  Parol  evidence  is  admissible  to  prove  that  a  Ji.fa.  was  levied,  though  no 
returii  was  made  upon  it.  BidlitVs  exrs.  v.  Winston,  1  .Munf.  Rep.  2G9. 

In  J\''eiv  Jersey,  a  transcript  ot  a  justice's  dockt  t,  is  not  evidence  to  prove  the  de- 
livery of  execution  to  a  cnnslabl'-.   Hunt  \.  Boylan,  i  Hah.  Rep.'2.\.\. 

A  Sheriff's  return  is  no  evidence  of  money  paid  to  the  plaintiff.  First  y.  Ji£ller, 
i  Bibb's  Rep.  311. 


PUBLIC  WRITINGS,  &c.  gg 

SECTION  II. 

Of  Public  Writings,  not  being  Records. 

Public  matters,  not  of  record,  are  next   to  be   considered.  Chap.  II.  s.  2. 
— Some  of  these  resembling  records  in   being  confined  to  one  ■ 

place  for  public  satisfaction,  the  law  suffers  the  like  evidence  to 
be  given  of  them,  as  is  usually  given  to  a  jury  of  records,  viz. 
true  copies  examined  with  the  original :  and  gives  a  degree  of 
credit  to  others  when  produced,  which  it  does  not  to  a  mere  pri- 
vate instrument. 

Of  this  nature  are — 

1st.  Journals  of  the  Houses  of  Parliament. 

2dly.  Proceedings  in  the  Court  of  Chancery,  by  bill  of 

complaint,  which  not  being  precedents  of  justice,  but  founded  on 

'  the  circumstances  of  each  particular  case,  are  not  considered  as 

furnishing  a  general  rule  of  action ;  and  for  that  reason  are  not 

denominated  records. 

A  Sheriff's  return  is  conclusive  of  the  fact  who  was  the  purchaser  at  a  sale  made 
by  him.  Small  et  al.\.  Hodff en,  I  LittelPs  Rep.  16.  Unless  falsified  by  a  judicial 
sentence  in  a  proceeding  to  which  the  Sheriff  was  a  party.  Tngg  v.  Le-Ms''s  exrs. 
3  2)0.129. 

If  land  was  sold  by  the  Sheriff,  the  best  evidence  would  be  the  return  by  the  She- 
riff to  the  venditioni  exponas. — Per  Tilghman  C.  J.  Salmon  et  al.  v.  Ranee  et  al. 
SSer^M  R.Rep.  314. 

The  docket  entries  are  not  evidence  of  the  issuing,  service,  and  return  of  a  writ. 
The  writ  itself  must  be  produced.  Vincent  \.  Huff's  les.  4  Serg.  &.  R.  Rep.  298, 
Sed  contra   Taylor  v.  Dundass,  1  Wasli.  Rep.  94. 

Ill  an  action  of  debt  on  bond  against  the  sureties  of  the  Sheriff,  where  the  plea  was 
payment,  wiih  leave,  &c.  the  return  of  "  levied  as  per  inventory''  was  not  conclu- 
sive upon  the  defendants,  bui  he  niigbt  shew  that  tht-  irregularity  of  the  Slif-riff's 
proceedings  arose  from  the  plaimiff's  interference.  M'Kean  v.  Penrose's  securities) 
Msi  Prius,  1803,  M.  S.  Rep. 

In  debt  against  a  Sheriff  'or  an  escape  on  a  ca.  sa.  tdJI'which  he  had  returned 
"  cepi  corpus  et  committitur,"  parol  evidence  that  he  did  not  make  tlie  arrest  till 
three  days  after  the  return,  is  not  admissible.  Shewell  v.  Fell,  3  Yeates'  Rep.  17. 
S.  C.  4  Do.  47. 

In  debt  on  a  replevin  bond,  evidence  is  not  admissible  to  contradict  the  Sheriff's 
return  of  elongatur.  Phillips  v.  Hyde,  I  Dall.  Rep.  439. 

The  return  ot  a  Marshal  to  a  writ,  cannot  be  ti'aversed  in  an  action  between  the 
parties  to  a  suit,  in  which  it  issued     Wilson  v.  Hurst's  exrs.  I  Peters'  Rep   441. 

In  an  action  against  the  Sheriff  for  a  fwlsereturn  to  anexecution  oinulla  buna,  the 
burden  of  proof  lies  on  the  plaintiff.  Davis  v.  Johnson  &  Co.  3  JMwif.  Rep.  81. 

Although  in  an  action  for  a  false  >  eturn,  the  plaintiff  may  falsity  it  by  ■  vi-ience, 
yet  the  officer  making  the  reiu  n  la'inot  be  admitted  to  contradict  it.  Purringtonv. 
LoriTig,  7  Mass.  Rep.  388.— Am.  E». 


8Jj  PUJ3MC  WRITINGS, 

Chap.  II.  s.  2.      Sdly.    Proceedings    in    tlie    Ecclesiastical    or    Admiralty 

l'.ri.:.n..  ..t.   Col  UTS. 

^________       4ihly.  Those  in  Foreign  Courts. 

5thly.  Inferior  Jurisdictions. 
6thlj.  Acts  of  State  and  General  History. 
Ztlily.  Commissions  executed  on  public  occasions. 
Stilly.  Parish  Registers. 

Qtlily.  All  other  things  which  applying  to  several  persons,  are 
in  some  degree  of  a  public  nature,  as  the  rolls  of  Courts  baron, 
terriers,  and  books  of  public  companies  and  corporations. 

Though  I  have,  agreeable  to  the  modern  decisions,  placed  the 
proceedings  of  the  House  of  Commons  in  this  class,  yet  it  seems 
formerly  to  liave  been  matter  of  doubt,  whether  the  Journals  of 
that  House  were  not  entitled  to  the  authority  of  records  in  the 
strict  technical  sense  of  that  word.  Sir  Edward  Coke,  whose 
high  opinion  of  the  authority  of  Parliament  is  well  known  to 
every  constitutional  lawyer,  has  contended  that  they  were  so; 
4  Inst.  23.  and  in  support  of  his  opinion  has  referred  to  the  Statute  6  Hen, 
8.  c.  16,  which  prohibits  the  absence  of  any  of  the  members, 
without  licence  ej7/ercf/ o/"  reco/-<^/ in  the  book  of  the  clerk.  Not- 
withstanding this  high  authority,  it  has  been  said,  that  as  the 
House  itself  is  not  a  Court  of  record,  none  of  its  proceedings  are 
so  ;  and  such  is  now  the  general  opinion.  According  to  the  old 
notions  of  evidence,  copies  of  nothing  short  of  records  could  be 
Vide  Cowp.  received  as  evidence  of  the  originals,  and  therefore  it  has  by 
^''  some  been  thought  that  in  this  case  the  books  themselves  should 

be  produced  ;  but  the  contrary  is  now  clearly  established,  and 
copies  from  the  books  of  either  House  examined  with  the  origi- 
nals, and  proved  by  a  witness,  are  equally  received  as  evidence 
.Tones  t>.         of  the  proceedings  of  the  House;  though  in  cases  where  either 
RaniUll  House  of  Parliament  merely  comes  to  resolutions  as  a  founda- 

R.  w.  L.i.G.  tion  for  othet  proceedings,  these  resolutions  are  no  evidence  of 
G<rdon,Uoug.^,^g  truth  of  the  fact  resolved;  and  therefore  on  the  trial  of  Oates, 
the  resolution  of  the  two  Houses, (1)  as  to  the  existence  of  the 
(l)4St.Tr.  popish  plot,  was  properly  held  to  be  no  evidence  in  a  Court  of 
Justice  (il  the  truth  of  that  fact ;  and  in  two  much  later  cases,  in 
(2)  R-x  V.  onef2)  ofvvhich  the  House  of  Commons  had  resolved  that  a  pub- 
Sirickii...--,  K.  ijj^.^^jy,,  ^y^^  .^  ijijgi  y,^  ^i^g  House,  and  in  the  otherfS)  that  it  was 

B.  W  "tin.  .  ^    ' 

aftt  r  Midi,  a  libel  on  Mie  Constitution,  and  where  the  .'Attorney  General  was 

30  G.  J.  ordered  to  prosecute,  the  jury  were  nevertheless  directed  to  con- 

(.3)  R  X  V.  sider  the  intention  of  the  defendants,  and  in  both  cases  acquitted 

Gu  (ihaii.  the  party  who  was  so  prosecuted. (§•) 

at'tfi    Easi  T.  ■  " 

36  G.  3. 

g)  The  printed  jouroals  of  Congress  have  been  allowed  to  be  read  without  proof 


NOT  RECORDS.  g^ 

The  Bill  in  Chancery,  when  further  proceedings  had  been  ciiap.  II  s.'z. 
taken  on  it,  was  formerly  considered  as  evidence  against  the  •*'"  '"  ^'"'"- 

plaintiff,  of  any  fact  stated  in  it;  but  in  modern  times, (1)  Courts,  ' 

properly  considering  that  most  of  the  facts  are  tlie  mere  sugges-  m\  S|„,^^,  ^ 
tion  of  counsel  to  extort  an  answer  from  tlie  defendant,  have  i^'''"'ps>i  Sid. 

'i'JO.  Bui  N  P 

held  that  it  is  no  evidence  for  any  other  purpose,  than  merely  to  235! 
shew,  that  such  a  bill  was  in  fact  filed,  or  to  prove  such  facts  as 
are  the  subject  of  reputation  and  hearsay  evidence,  as  the  plain- 
tiff's pedigree  and  the  like  ;i  2)  and  even  of.tliis  some  doubts  have  i")  O"*"  <'em. 
been  made.(3)  S>i)ouni,  7T. 

That  the  answer  of  a  defendant  is  evidence  against  the  per- ';',"i'; '-^ 

.  ,        ,  .  T  Tajlorr. 

son  swearing  it,  or  those  claiming  under  him, (4;  there  can  be  nocoif,  cit.d 

doubt,  for  if  the  admission  of  a  man  is  received  as  proof  of  a'  ^"- ^••'• 
■  [^  «.  i^^i^^  ^^^^ 

fact  against  him,  much  more  ought  that   confession   which  he 

makes  on  oath:   but  still  it  is  considered  as  a  confession  only, ^■^^'^"'^' 

though  under  a  higher  sanction,  and  therefore  is  admitted  in  no  (4)  Lady 

case  where  a  confession  would  not  be  evidence  ;  for  which  rea- jiJ^^'^^s"^  ^  ^' 

son, (5)  the  answer  of  an  infant  by  his  guardian, (6)  who  is  sworn  i^  East.  334. 

to  it,  is  not  received  in  evidence  against  the  rights  of  the  in-(5)Godb.  3-26. 

fant  ;(/t)  and  doubts  have  been  entertained  how  far  a  feme  covert 

1        iji  •    J-       J    u     I  *  (6)  Eccleston 

should  be  prejudiced   by  her  answer.*  \,  P-uy,  alias 

The  consequence  which  follows  from  the  answer  beina:  consi- ?'"''^'^'^'"'^''' 
dered  as  an  admission  only,  is,  that  the  objection  that  it  was  res 
inter  alios  acta,  does  not  apply  as  in  the  case  of  other  legal  pro- 
of ili'ir  authenticity.     Commomuealth  v.  Longchamps,  Oyer  and  Term.  Plillad. 
1784,  M.  S  Rej). 

The  notes  of  ihe  Assembly,  and  minutes  of  Council,  wire  admitted  to  pfove  the 
time  of  the  ni>|ific:.lii)n  of  Ihe  repeal  of  an  Act  of  Assemhl'i  Ijv  the  King  and  Council. 
I^R.  of.ilbcrtson  v.  Robeson,  1  Dall.  Rep.  9.  Et  vide  Bingham  v.  Cabbot  et  al. 
3  Dall.  Rep.  19. 

A  pi- iited  copy  of  public  tiocuments,  transmilted  to  Congress  by  the  Presideul  of 
the  U.  States, -Mi'f  piinied  Uy  the  printer  to  Congress,  is  evidence.  Radcliffw  Lfn. 
Ins.  Co.  7  Johns.  Rep.  38 Am.  Ed. 

(h)  Et  \ide  Mills  v.  Dennis  et  al.  3  Johns.  Ch.  Rep.  367.  Fraser  v.  Marsh, 
2  Sttirkie's  Rep.  41. 

Vide  contra  in  an  attion  for  an  assault.  James  v.  Hafjleld,  1  Strangers  Rep.  .548. 
Et  vide  Sailer  v.  Speir,  Tuvl.  Rep.  318 — Am.  Eu. 

•  Wrottesleif  v.  Bendish,  3  P.  Will.  235.  In  this  case,  where  the  question  was, 
whether  the  wifi-  should  answer  jointly  with  her  husband  or  not,  the  Lord  Clian- 
ccliiir  said,  "  i  do  not  now  givv  any  0|>iiiii>n  whether  the  answer  ma>  be  read  against 
ihi  \\ile,  when  disroverl,  'ir  not,  but  as  in  all  times  heietotore,  the  wife  as  well  as 
the  hu!'')aiid,  has  been  compelled  to  answer,  I  will  not  tak>-  upon  myselt  to  ovei- 
throw  what  has  h'en  the  eotiRtatit  praetice  ;"  hiii  his  Loidship  said  he  would  not 
compel  her  to  answer  any  thing  which  inighi  subjrct  her  to  a  forfi  iture,  though  tiie 
liusbaiid  snbmiiii'd  to  aT.swer.f 

1  El  vide  Barron  V.  Gnllard,3  Vcs.  U  Beam.  Rep.  166.— Am.  Ed. 


85  PUBLIC  WRITINGS, 

Chap.  II.  s.  2.  ceedings.     Therefore  in  the  case  just  mentioned,  of  the  answer 
Answers  in  of  ^fj  infant  bv  his  guardian,  the  admission  of  the  latter  so  made. 

Chancery.  :',*'.,.-  ,  .,  . 

__________  though  not  evidence  against  the  inrant,  may  be  evidence  against 


(nBeasievr  himself  ;(])  and  in  an  action  against  B.  the  answer  of  A.  his 

Masfiath,        partner,  to  a  bill  filed  against  him  by  other  creditors,  was  ad- 

Lefroy^  39.     Hiitted  as  evidence  of  the  facts  stated  in  it;(2)  as  was  also  the 

voluntary  affidavit  of  one  man,  who  was  jointly  interested  with 

(2)  Grant  r.  .         i  ,.         ,  ,^  •      .i  ^i  u    .i    /^x    ,-. 

Jackson  and     another  in  an  action  brought  against  them  both. (3)  (i) 

another,  ^y^  j^^ve  before  seen  that  a  copy  of  the  whole  iudgment,  and 

I'eake's  N.  P.  .  j      J3  ' 

203.  '  not  a  partial  extract  of  it,   must  be  produced  to  the  jury  ;  the 

,„>  „.       ,     reason  on  which  the  rule  was  established,  applies  with  equal 

(3)  Vicary's  •  ry  c  '      rr  n 

case,  Excheq.  foixe  to  proceedings  in  a  Court  of  Equity,  and  indeed  every 
Giib.Law  hv.     j^g^  vt^ritten  instrument.     The  defendant  is  entitled,  in  a  Court 

5/.      Lil  OCU- 

iTian'scase,  of  Law,  to  have  the  whole  of  his  answer  read,(4)  and  so  far  was 
5\  1710  im-this  rule  carried  in  one  case,(5)  that  where  one  answer  had  been 
Gould,  put  in  by  the  defendant,  and  on  exceptions  taken  to  it,  he  put 

(4)  Earl  of  in  a  second  answer,  he  was  allowed  on  an  information  for  per- 
Bath  ti.  Bat-   iury,  to  read  the  second  answer  in  explanation  of  the  general 

iersea,5Mod.''      -^ '       ^    ,       „  _,,,  ,,      "   r-  .... 

10.  terms  of  the  first.     When,  tbererore,  an  answer  is  given  in  evi- 

.  .  P  .  dence,  the  party  producing  it  makes  the  whole  of  it  evidence 
Garr,  1  Sid.  for  the  defendant,  of  the  facts  positively  stated  in  it :  though  not 
**^*  of  those  which  are  stated  merely  on  hearsay,  with  the  addition 

(^,)  Roe  dem.  0^  the  deponent's  belief  of  their  truth.(6)(A;)*     Still,  though  evi- 

Fellattr.  Fer-  .^__^_ 

rarSj  2  Bos.  he 

Full.  542.  [i)  A  confession  contained  in  an  answer  to  a  bill  in  Equity,  filed  by  a  third  person, 

is  evidence  against  the  defendant  in  a  suit  at  Cora. non  Law.    Kiddie\.  Debrutz, 
1  II(ty.  Rep.  421.     Grant  v  Jackson  et  al.  Peake''s  Cas-  203. 

Where  an  unsioer  is  put  in  issue,  what  is  confessed,  need  not  be  proved.  Hart  v. 
Ten  Erjck  et  al.  2  Johns.  Ch.  Rep:  62. 

But  ihe  plaintift"  cannot  avail  himself  of  the  answer  of  a  defendant  who  is  substan- 
tially a  plvintirt'.  Vide  Field  et  al.  v.  Ilulkmd  et  al.  6  Crunch's  Rep.  8. 

Till'  answer  of  one  defendant  in  Chancery,  is  no  evidence  against  his  co-defend- 
ant. Phenix  v.  ./Iss.  of  In^raham,  5  Jolins.  Rep.  412.  Leeds  v.  Mar.  Ins.  Co.  of 
Alexandria,  2  Wheat.  Rep.  380.  Clark's  exrs.  v.  Van  Riemsdyk,  9  Cranch's 
Rep.  153. 

But  it  IS  against  other  defendants  claiming  through  him.  Field  et  al.  v.  Holland 
et  al.  6  Crancli's  Rep.  8.  Vi(l<-  Van  Reinesdick  v.  Ji^a7ie  et  al.  1  Gall.  Rep.  630. 
Bardelt  v.  Marshall,  2  Bibb's  Rep.  470. 

Subsequent  declarations  by  a  party  to  a  sale,  which  go  to  take  away  a  vested 
ri"!ii,  are  not  evidenci.'.  Phenix  v.  .iss.  oflngraliam,  5  Johns.  Rep.  412. — Am.  Ed. 

(k)  Sed  qnere  vide  Hoffman  et  al.  v.  Smith,  I  Caines's  Rep.  15". 

The  confession  of  a  party,  must  be  taken  altogelher.  J\/'eioman  v.  Bradley, 
1  Bull.  Rep.  240.  Farrel  v.  M'C'lea,  ibid.  392. 

Where  an  answer  in  Clianci  ry  is  given  in  evidence  in  a  Coztrt  of  Laxv,  the  party 
is  entitled  to  have  the  whole  of  his  answer  read,  and  it  is  to  be  received  ?iS prima 
facie  evidence  of  the  facts  stated  in  it,  open  however  to  be  rebutted  by  the  opposite 
party.  Laurence  v.  Ocean  Ins.  Co.  11  Johns.  Rep.  260. — Am.  Ed. 

•  In  Courts  of  Equity  a  different  rule  prevails  ;  the  plaintiff  may  there  select  a 


NOT  RECORDS.  gy 

vlence  of  the  facts  so  positively  stated,  it  is  not  conclusively  so,  Chnp.  ii.  s.  2. 
but  the  plaintiif  may  contradict  it  by  other  evidence  ;   or  if  the   'Qi^^Zly^ 
jury,  from  the  wliole  circumstances  of  the  case,  see  reason  to  be-  _______^ 

lieve  one  part  of  it,  and  to  disbelieve  another;  they  may  use  the 

particular  admission,  and  when  tiiat  is  leiii),  llu;  diffiidiint  is  obliged  tn  prove  tlie 
other  facts  staled  in  his  answer  hy  other  evidence.  Tlius,  wlieri-  to  u  bill  by  credi- 
tors ugainst  an  executor  I'oi-  an  account,  the  executor  answered  that  l,HML  was  de- 
posited by  the  testator  in  his  liands,  and  that  atterwaids  on  making  up  Ids  accounts 
with  the  ttstatoi',  he  gave  a  bond  for  1,000/.  and  the  other  100/.  was  given  him 
for  his  trouble  and  pains  in  the  testator's  business  :  though  there  was  no  other  evi- 
dence that  the  1,100/.  was  deposited  but  the  executor's  own  oath,  it  was  Ae/J,  that 
■when  an  answer  was  put  in  issue,  what  was  confessed  and  admitted  in  it  n^-ed  not 
be  proved  by  the  plaintiff,  but  that  it  behoved  the  defendant  to  make  out  by  proofs 
what  was  insisted  on  by  way  of  avoidance.  But  this  was  held  under  this  distinc- 
tion :  when  the  defendant  admitted  a  fiict,  and  insisted  on  a  distinct  fact,  by  way  of 
avoidance,  then  he  ought  to  prove  the  matter  in  his  defence ,-  because  it  may  be  pro- 
bable that  he  admitted  it  out  of  appreht  nsion  that  it  might  be  proved,  and  therefore 
such  admittaiice  ought  not  to  profit  hiiu,  so  far  as  to  pass  for  truth,  whatsoever  he 
says  in  avoidance  :  but  if  it  had  bee;i  one  fact,  as  if  the  defendant  bad  said  the  testa- 
tor h:id  given  him  100/.  it  ought  to  be  allowed,  unless  disproved  ;  because  nothing 
of  the  fact  chaiged  is  admitted,  and  the  plaintiff  may  dispi-ove  the  whole  fact  as 
sworn,  if  he  can  do  it.  And  it  being  urged,  that  here  the  probability  was  on  the  de- 
fendant's side,  because  the  testator  did  not  take  a  bond  for  this  sum  as  for  the  resi- 
due^ the  Chancellor  said  there  was  some  presumption  in  that,  but  not  enough  to 
carry  so  large  a  sum  without  bettor  aitpstatioo.  ^Inony.  Uil.  Vac.  1707, per  Cow- 
pkh,  Chanc.  Gilb.  La-u  Ev.  5'2.  I  have  been  particular  in  extracting  the  whole  of 
lliis  case,  because  perhaps  no  other  betti  r  shews  the  distinction  between  the  rules  of 
eviflence  in  the  Common  Law  Courts,  and  those  possessing  an  t  suitable  jurisdiction. 
In  a  Court  of  Law,  it  would  have  been  said,  as  was  urged  in  this  case,  that  "  if  a 
man  was  so  honest  as  to  charge  himself  when  he  might  roundly  have  denied  it,  anil 
no  testimony  could  have  appeared,  he  ought  to  obtain  credit  when  he  swears  in  his 
own  discharge."  My  habits  of  thinking  and  legal  notions  having  been  formed  in 
Courts  of  Law,  may  perhaps  have  given  me  an  unfair  prejudice  in  favour  of  their 
rules ;  but  I  do  confess  that  to  me  they  appear,  in  this  particular  at  least,  most  con- 
sonant to  reason  and  justice. 

The  above  note  has  given  rise  to  some  observations  from  Mr.  Eva?is,  in  his  notes 
on  Pothier  (vol.  2,  pp.  157,  8.)  He  says,  "the  distinction  is  not  between  Courts  of 
Law  and  Equity,  but  between  pleading  anA  evidence ;  and  that  if  au  answer  in 
Chancery  was  introduced  incidentally,  and  merely  by  way  of  evidence  in  a  Court  of 
Equity,  it  ought  to  be  treated  precisely  in  the  same  way  as  in  a  Court  of  Law.  On 
the  other  hand,  it  is  very  clear,  that  if  in  a  Court  nt  Law  a  plea  confesses  the  matter  in 
demand,  but  avoids  it  by  other  circumstances,  the  pi  oof  of  the  avoidance  is  incuiidjent 
on  the  defendant.''  Were  there  any  analogy  between  the  proceedings  of  a  Court  of 
Lawand  those  ofaCourt  of  Equity,  there  would  be  gr(  at  weight  in  the  answergiven 
to  the  objection;  but  the  two  Courts  proceed  upon  quite  different  piinciples,  and  each 
has  adopted  modes  of  procedure  consistent  with  the  principles  upon  which  it  acts. 
In  a  Court  of  Law  the  plaintiff  states  his  case,  and  recovers  upon  the  evidence  which 
he  himself  is  able  to  produce  in  support  of  it.  The  defendant  is  not  called  upon  to 
make  any  confession  by  his  plea ;  if  he  does  so,  it  his  own  voluntary  act,  and  there- 
fore ought  to  bind  him.  In  the  case  which  has  given  rise  to  these  observations,  we 
must  suppose  thai  the  plaintiffs,  the  creditors,  had  no  evidence  whatever.  Had  they 
sued  the  executor  at  law,  the  plea  of /j/*?«e  «(//mn«/)'aw^  would  have  been  a  com- 
plete answer  to  their  actions,  and  no  money  could  have  been  recovered  from  tht? 


gg  PUBLIC  WRITINGS, 

Chap.  II.  s.  2.  sam^  discretion  in  this  instance,  as  in  every  other,  of  drawing 
Aiisw-is  111   gm-i^  conclusion,  as  results  from  all  the  circumstances  taken  lo- 

getlier.(l) 

(X)  Viu  15  ,-      I'l^^i'e  is  one  instance,  however,  in  which  a  part  of  an  answer 
moiiT' Woo()-may  be  read  without  making  the  whole  evidence,  and  that  is 

bridse,  Doiiir.      i  a-         i  -^  i  •  i 

788.  where  a  person  ottered  as  a  witness,  lias,   in  an  answer,  shewn 

himself  interested  in  the  event  of  the  cause  ;(2)  the  part  of  the 
Drax ' Mioh  answer,  which  is  read  for  the  purpose  of  rejecting  his  testimony, 
27  c:  2.  does  not  entitle  him  to  have  any  other  part  read,  and  this  for  the 

.w  -jjgg^  of  all  possible  reasons,  viz.  that  by  doing  so,  the  very  pur- 
pose, for  which  it  was  produced,  would  be  defeated,  and  he  would 
be  giving  his  testimony  in  the  answer  at  the  time  that  it  appear- 
ed, that  all  evidence  from  him  was  inadmissible. 
Affidavit.         Similar  to  an  answer  is  an  aifidavit  of  a  man  in  the  course  of 
("IB  oh-      ^  cause  ;(3)   but  a  voluntary  affidavit,  or  one  not   made  in   the 
juHii's  case,     course  of  a  judicial  proceeding,  as,  for  instance,  one  made  by  the 
Ev  52.  '^^      vendor  of  an  estate  before  a  Master  in  Chancery,  to  satisfy  the 
purchaser  that  the  estate  was  free  from  incumbrances,(4)  cannot 
Gonioii,         be  proved  without  producing  the  original,  and  if  meant  to  be  re- 
3  Mod.  SG.     \\Q^\  Qfj  as  a  representation  upon  oath,  must  be  proved  also  to  be 
sworn  ;  for  if  only  the  hand  writing  be  proved,  it  has  no  further 
effect  than  an  admission  in  a  note  or  letter;  whereas  the  answer 
in  Chancery  always  being  on  oath,  it  is  in  all  civil  cases  taken 
to  have  been  sworn  by  the  defendant,  without  further  proof  of 
(5)  Gilb.  Law  identity  than  copies  of  the  proceedings  in  the  cause;(o  )  and  even 
ulnmiiT'       ^^  ^"  indictment  for  perjury,  proof  of  the  hand-writing  of  the 
Lyon,!  Barn.  Master,  before  whom  it  purports  to  be  sworn,  and  of  that  of  the 
defendant  himself,  has  been  held  sufficient  evidence  of  the  ad- 
(C)  RexT).      ministration  of  the  oath.(6) 

Morris, 

2BuiT.  1189, 

defend«iit.  To  obtain  jusliec,  the  creditors  file  a  bill  in  Equity  against  the  ili^fen- 
dant,  the  very  groimtl  of  their  complaint  being  that  they  ar«-  remediless  at  Law, 
though  ill  justice  the  deleiidant  ought  to  [lay  lli."  money.  The  Court  ot  E(|uii>  iloes 
not  require  the  plaintiff  to  prove  his  case  ;  the  defendant  has  no  means  oi  comp;  ll;ng 
him  to  do  so;  nor  can  he,  as  in  a  Court  of  Law,  put  in  such  a  plea  as  he  may  ihink 
most  advantageous  to  himself.  On  the  conlrarv ,  his  conscience  is  pri  sse^i  into  the 
service  of  the  jilaiiilifT;  the  defendant  is,  in  fact,  culled  as  a  -witness  for  him,  and  ob» 
liged,  under  the  most  solemn  sanction,  to  state  the  case  as  it  really  is;  the  li  gal  re- 
sult of  the  several  circumstances  is  not  sufficient,  the  circumstances  ihcmsr  lve»niust 
be  particularly  stateti,  and  on  this  statement  alone  (for  we  are  all  along  spf.kiiig  of 
a  case  where  the  plainlifl'has  no  witnesses)  is  it  that  the  plaintiff  can  itcov  r  one 
shilling  of  his  demand.  Where  then  exists  the  a:ialogy  bn  ween  an  answ-  r  in  Chan- 
cery and  a  plea  at  Comnion  L-.«w,  or  how  can  this  piactice  of  a  Court  oi  Equii'  be 
called  a  rule  oi  pleadin^'^  It  is  merely  a  cas-;  oi  evulencc  and  if  the  p'amiiff  eiioose 
to  avail  himself  ot  the  defendant's  tesumony,  and  n, -k'  him  a  witnt  ss  iigamsi  him- 
self, whether  the  answer  is  used  in  one  Court  or  in  another,  in  justice  aud  reason 
one  would  think  it  should  have  Uie  same  effect. 


>iOT  RECORDS.  gg 

The  nest  kind  of  proceedings  which  generally  come  from  the  Chap,  ii  s.  2. 
Court  of  Chancery,  are  the  depositions  of  witnesses  ;  and  as  the  ^'^•pos'tions. 
depositions  taken  in  other  Courts  stand  on  the  same  foundation,  — — — — 
I  shall  here  consider  them  together.     These  are  not  received  on 
the  same  principle  as  the  answer,  namely,  as  an  admission  of 
the  party,  but  as  the  next  best  evidence  in  the  room  of  some 
other,  which  his  adversary  has  been  deprived  of:   and  therefore 
it  is,  that  in  no  case  where  a  witness  is  living  and  to  be  found,* 
shall  his  deposition  be  read  as  evidence  of  the  facts  deposed  to, 
or  for  any  other  purpose  than  to  confront  and  contradict  him, (1)(/)  (i)  Tilly's 
But  when  it  is  proved  that  the  witness  is  dead,  or  that  he  cannot  ogc.' 
be  found  after  the  most  diligent  search,  or,  as  has  been  said,  has 
fallen  sick  by  the  way,(2)  t  the  deposition  of  such  witness  shall  (2)  Benson  v. 
be  admitted  in  evidence  ;  for  though  a  private  examination  does  9^20^*^ 'Godb?' 
not  give  that  satisfaction  to  the  mind,  which  a  public  one  before  '26- 

*  ^  Vi-le  Luttrel 


•  In  Tilly's  case,  the  witness  after  examinalion  became  interested,  and  was  a  par- 
ty in  the  cause,  and  TkevoBjC.  J.  at  first  thoiigiit  that  his  deposition  might  be 
read  :  but  Thacy  and  Blencoe  being  of  a  contrary  opinion.  Tract  went  to  the 
King's  Bench  to  ask  the  opinion  of  (hat  Court,  and  C.  J.  Holt  thinking  that  it  was 
not  evidence,  Tbevou  agreed.  Vide  etiam  ^a/rer  v.  Lord  Fairfax,  I  Stra.lQl. 
In  liiiisman  v.  Crooke,^  Lord  Raym.  1166,  the  witness  had  been  examined  in 
Chancery,  and  there  referred  to  a  written  account.  He  afterwards  bi-came  blind, 
and,  on  a  trial  at  Law,  his  deposition  was  read,  and  he  called  to  give  parol  evidence 
ia  support  of  it.+ 

{l)  Parol  evidence  of  what  a  witness  swore  on  a  former  trial  of  the  same  case, 
(who  was  present  but  had  forgotten  what  he  swore,)  is  not  admissible — it  can  only 
be  done — 1st.  Where  the  witness  is  dead.  i2d.  insane.  3d.  Beyond  seas.  4th.  Where 
the  Court  is  satisfied  that  the  witness  has  been  kept  away  by  the  contrivance  of  the 
opposite  party.  Drayton  v.  Wells,  1  J\'ott  &  J\P  Cord's  Rep.  409. 

A  deposition  taken  in  a  suit  between  A.  and  B.  at  the  instance  of  the  defendant, 
is  not  evidence  against  £.  in  smother  suit  between  B.  and  C.  ITovey  v.  Ilovey, 
9  Mass.  Rep.  216 

But  evidence  of  the  testimony  given  by  a  witness  on  a  former  trial  of  the  same 
cause,  the  witness  in  the  mean  time  having  been  convicted  of  an  infatuniis  crime,  is 
not  to  be  received.  Le  Bnron  v.  Crombie  et  at.  14  JVIass.  Rep.  234.  Vide 
Po-wellv.  Waters,  \7  Johns.  Rep.  176. 

Evidence  given  in  one  suit  by  a.  deceased  witness,  is  proper  evidence  in  a  subse- 
quent one,  where  the  point  in  issue  is  the  same,  and  between  the  same  parties,  but 
also,  for  and  against  persons  standing  in  ihe  relation  of  privies  in  blood,  in  estate  or 
in  law.  Jackson  ex  d.  Bates  v.  Lawsnn,  15  Johns.  Rep.  539.  Vide  Jackson  ex.  d. 
Gillespy  et  at.  v.  Woolsey,  11  Johns.  Rep.  446.  Pegram  v.  Isabell,  1  H.ii  Munf. 
Rep.  193. 

On  an  appeal  in  a  criminal  case,  what  a  witness,  who  is  since  dead,  swore  in  the 
Court  below,  cannot  be  received  in  evidence  against  the  defendant.  State  v,  Atkins. 
Overton's  Rep.  229.— Am   En. 

t  Though  a  good  ground  for  pos'poning  the  trial,  this  would  hardly  now  be  con' 
aidered  as  sufficient  to  makr  ttic  dcp.  sulon  evidence. 

+  Vide  Hill  v.  Bulklev,  1  PhiUimore's  Rep.  280.— Am,  Ed, 
N 


V.  Cory, 
1  Mod.  283, 


<jQ  PUBLIC  WRITINGS, 

Chap.  II.  9. 2.  a  Judge  and  jury  does,  it  is  nevertheless  the  representation  of 
rk'posiu.i.s.  ^j^g  witness  under  the  sanction  of  an  oath,  and  when  he  was 
**""""""  equally  liable  to  cross-examination  by  the  party  against  whom 
his  deposition  is  offered  ;  for  though  certain  questions  are  pro- 
pounded to  the  witness  in  the  form  of  interrogatories,  yet  it  is 
the  duty  of  the  commissioners,  before  whom  he  is  examined,  to 
use  all  means  to  get  at  the  truth  ;  and  they  are  not  strictly  tied 
down  to  the  words  of  the  interrogatories,  but,  as  Lord  Coke 

(1)  Peacock's  says,(l)  "  to  every  thing  else  which  necessarily  ariseth  there- 
To%^  ^°'     upon  for  the  manifestation  of  the  whole  truth  of  the  matter  in 

question.''     Even  the  evidence  which  a  witness  gave  on  a  for- 

(2)  Coker  v.  mer  trial  between  the  same  parties,(2)  has  after  his  death  been 
Farewell,       j-g^^^j  jj-^  ^  (.jy^j  action,  a  foundation  being:  laid  for  it  bv  the  pro- 

2P.  Wil.ooS.  .      .  '-'  .  ."^    . 

duction  of  the  postea.     But  this  is  not  allowed  in  a  criminal  pro- 

(3)  Sir  John  secution.(3)  And  in  other  cases  the  witness  who  is  to  prove 
fas"  Tst^Tr  ^^^^^  ^^as  sworn,  should  give  the  precise  words,  and  not  what  he 
265,  &c.         supposes  to  be  the  effect  of  the  evidence.(4)(m) 

(4)  Vide  4  T.  — 

Kep.  2y0.  ^jjjj  ^ji  answer  in  a  deposition  thai   an  eJC/>arte  certificate,  which  the  witness  had 

givt  ri  is  true,  is  not  evidence.  Richardson  v.  Golder,  C.  C.  Penn.  Oct.lSll,J\L  S. 
Rep. 

An  ex  parte  .tffiilavil  of  an  insolvent  debtor,  is  inadmissible  on  a  question  of  setting 
aside  an  execution  on  liis  goods    Plunkenhorn  v.  Cave,  2  Feates'  Rep.  370. 

Depositions  taken  in  a  ioicign  Couri  ot  Admiralty,  may  be  read,  to  shew  on  what 
ground  the  sentence  went.  JJeclerer  v.  Del.  Ins.  Co.  C.  C.  Penn.  ^pril,  1807, 
M.  S.  Rep. 

The  rieposi'ions  contained  in  the  proceedings  of  a  foreign  Court  of  Admiralty, 
condemning  a  vessel,  are  not  evidence  in  an  action  upon  a  policy  of  insurance  on  the 
vessel.  Mar.  Jtis.  Co.  v.  Hodgson,  6  Cranch's  Rep.  207. 

A  iieposition  taken  de  bene  esse,  bciore  Harr.  filed,  allowed  under  the  circum- 
stances of  the  case,  jyiumfordv.  Church,  1  Johns.  Cos.  147. 

Depositions  taken  before  the  trustees  of  an  absconding  debtor,  may  be  used,  the 

trustees  t)eing  agents  for  both  parlies.    Cox  v.  Trustees  of  Puine ,  7  Johns.  Rep.  298, 

Depositions  taken  by  consent,  in  a  former  cause   in  which  the  defendant  was  a 

part),  and  where  the   same   title  came  in  question,  were  ruled  not  to  be  evidence. 

Les.  of  Weston  v.  Stammers,  1  Dall.  Rep.  2. 

It  is  a  settled  rule  of  law,  that  wiiat  a  witness  has  sworn  on  a  former  trial  be- 
tween the  same  parties,  for  tbi  same  cause  of  action,  may  be  given  in  evidence  in 
case  of  his  death.  JMilesy.  O'Hara,^  Binn.  Rep.  \\l.  Richardson  v.  Les  of  Stew- 
art,1  Serg.&R.  Rep.  Hi.  Ughtner  m  Mike,*Serg  SJ  R.  Rep.  205.  And  so 
where  the  witness  is  out  of  the  State.  Magill  v.  Kaufman,  4  Serj-.  (J  R.  Rep. 
319.   Carpenter  v   Groff,  5  Serg.  &  R.  Rep  162. 

It  seems  that  a  deposition  or  verdict  in  a  former  cause  in  relation  to  the  same 
question  between  the  same  plaintiff,  and  a  co-administrator  of  the  same  defendant, 
is  evidence.  Bouderau  v.  Montgomery,  C.  C.  Pe?in.  J\'ov.  1821,  Jl.  S.  Rep. 

Depositions  taken  in  a  suit  with  \he  factoi\  may  be  read  in  a  suit  with  ihn prin- 
cipal,  to:  the  same  cause  of  action.  Ritchie  &  Co.  v.  Lyne,  1  Call.  Rep.  489. 

Bui  the  notes  taken  by  a  counsel  ol  the  testimony  nt  a  deceased  witness,  supported 
only  by  his  own  oMth  that  he  believed  he  took  down  the  substance  of  what  tlie  wit- 
ness said,  ai«  not  evidence.  Lightner  v.  Wike,  4  Serg,  &  R,  Rep.  203. 


NOT  RECORDS.  g| 

it  sometimes  happens,  that  when  witnesses  are  resident  abroad,  chap.  ir.  s.  2. 
or  about  to  leave  the  kingdom,  or  there  is  reason  to  fear  their  i^'*i"«'t"ons- 
deaths,  depositions  are  taken  by  the  consent  of  the  parties  in  a 
cause,  or  under  the  direction  of  a  Court  of  Equity,  on  a  bill  filed 
for  that  purpose  ;  and  by  Stat.  13  Geo.  3,  c.  63,  s.  40,  it  is 
enacted,  that  in  all  cases  of  indictments  or  informations  laid  or 
exhibited  in  the  Court  of  King's  Bench  for  misdemeanors  or 
offences  committed  in  India,  that  Court  may,  upon  motion  by 
the  prosecutor  or  defendant,  award  a  writ  or  writs  of  mandamus^ 
requiring  the  Chief  Justice  and  Justices  of  the  Supreme  Court 
at  Fort-William^  or  the  Judges  of  the  Mayor's  Court  at  Madras^ 
£oinbay,  or  Bencoolen,  as  the  case  may  require,  to  hold  a  Court 
for  the  examination  of  witnesses  and  receiving  other  proofs. 
And  after  directing  the  mode  in  which  the  Court  is  to  be  holden, 
and  the  examinations  taken,  transmitted  to  England,  and  deli- 
vered into  Court,  the  Statute  goes  on  to  enact,  that  such  depo- 

Nor  the  notes  of  a  Judge  who  presided  at  a  former  trial.  Miles  y.  0'ffara,4i 
£inn.  Rep.  108.  Et  vide  Foster  et  al.  v.  Shatu  et  al.  7  Serg.  &  R.  Rep.  162. 

A  copy  of  a  Judge's  notes  of  the  testimony  of  a  witness  since  deceased,  taken  on 
a  former  trial,  and  certifi<  d  by  the  Judge  to  be  a  true  copy,  is  not  evidence;  nor 
are  the  original  notes  evidence  without  the  oath  of  a  Judge.  Jackson  et  al.  v.  Win- 
Chester,  2  Yeates'  Rep.  529.  S.  C.    4  Dull.  Rep.  205. 

The  testimony  of  a  witness  (since  dead)  on  a  question  of  bail  in  the  same  case, 
is  to  be  considered  as  a  declaration  in  pais  in  the  presence  of  the  party  ;  where  he 
agrees  to  the  statement,  it  may  be  received  as  his  confession  ;  where  he  is  silent,  the 
maxim  ^ui  facet  consentire  lidetiir,  is  applicable  ;  but  where  he  denies  it,  the  testi- 
mony is  inadmissible.  Jackson  et  al.  T.  Winchester,  2  Yeates'  Rep.  529.  S.  C.  i 
Ball.  Rep.  205. 

Depositions  taken  between  the  same  parties  on  a  caveat,  before  the  Board  of  Pro- 
perty, are  inadmissible,  although  the  witnesses  are  dead.  JMontgomery  v .  Snodgrass, 
2  Yeates^  Rep.  230.  Be  Haas  et  al.  v.  Galbreath,  2  Do.  315.  Sherman  v.  Bill, 
4  Bo.  295. 

A  deposition  sworn  to  between  referees  appointed  by  a  rule  of  Court  between  the 
same  parties,  in  a  former  suit,  for  the  same  lands,  the  witness  having  died,  since 
the  reference  was  ruled  inadmissible.  Staret  v.  Chambers  et  al.  cited  2  Yeates''  Rep. 
232,  n. 

But  a  deposition  read  to  arbitrators  in  a  dispute  between  the  same  parties  five 
years  before,  and  afterwards  confirmed  on  the  personal  examination  before  them, 
of  the  witness,  was  admitted,  the  witness  being  dead.  White  v.  Bisbing,  I  Yeates'' 
Rep.  400. 

A  deposition  once  read  in  evidence  without  opposition,  cannot  be  afterwards  ob- 
jected to  as  being  irregularly  taken.  Evans  v.  Hettich,  6  Wheat.  Rep.  453  Vide 
WMte  V.  Kihli7ig,  11  Johns.  Rep.  128. 

Where  a  prisoner  had  procured  a  witness  to  go  away,  evidence  of  what  he  had 
testified  before  a  grand  jury  was  admitted.  Rex  v.  Barber,  t  Root.  Rep.  76. 

It  seems  that  if  the  testimony  of  what  a  witness  swore  at  a  former  trial,  he  unac- 
companied with  the  postea  oi  record  of  the  former  suit,  and  t  the  time  the  objec- 
tion be  made,  the  evidence  is  iuadraissible.   Beats  V.  Guernsey,  8  Johns.  Bep.iSl. 

Vide  post.— Am.  Ed. 


95 


PUBLIC  WRIllXGS, 


Chap.  il.  s.  2.  silioiis  being  duly  taken  and  returned,  shall  be  allowed  and  read: 
As  to  what         J    j^j^i]  ijg  jeemed  as  good  and  competent  evidence  as  if  the 

sliitll  lit.  saio  o  '  •        J       • 

tob"  a  cause  of  Witness  had  been  present  and  sworn  and  exammed  viva  voce  at 
'^rin'jir'*'"^  *"^  trial  for  such  crimes  or  misdemeanors  :  and  that  all  parties 
_____^   concerned  shall  be  entitled  to  take  copies  of  such  depositions  at 

their  own  costs  and  charges. 
The  44th  section  of  the  same  Act  makes  a  similar  provision 

in  civil  actions  or  suits  in  any  Court  of  Law  or  Equity  in  Eng- 
(i)Vi(le  land,  for  which  cause  arises  in  India ',{!)  and  though  this  clause 
Francisco  r.  ^j^^g  jj^^^  \\\^q  ^hg  former,  name  the  defendant,  yet  it  has  been 
1  Bos.  fs  Pui.  held,  that  the  writ  may  issue  at  his  instance  as  well  as  that  of 
i'^-  the  plaintiff.;  2) 

(2)Griiiardr.  But  in  cases  where  a  party  offers  this  secondaiy  degree  of 
1  B^"«t'  &  evidence,  he  ought  to  adduce  some  kind  of  proof  to  shew  that 
Bing.  519.      lip  is  xiot  capable  of  giving  that  which  is  ordinarily  required  :(3) 

(3)  VideSalk.  and  therefore  when  the  witness  is  usually  resident  in  Eng- 
•^^i-  land,{4)  or  was  here  when  the  examination  was  taken,  it  must 

(4)  Fonsick  V.  be  proved  that  he  is  out  of  the  jurisdiction  of  the  Court  at  the 
c^'oh^  ^^P'time  his  deposition  is  offered  in  evidence,  for  if  he  is  within  it, 

he  himself  must  be  called  as  a  witness,  (n) 

(w)  Wliere  a  deposition  was  taken  by  a  commissioner  ia  a  foreign  coantrT.  whs 
certified  that  thf  witness  was  diilij  s^vor?i,  without  shewing  by  whom  or  in  what 
manner,  it  was  held  admissible.  Stocking  v.  Sage  etal.  I  Con.  Rep.  519. 

In  the  U.  States,  as  well  as  State  Courts  in  Pennsylvania,  tiie  depositions  of 
witnesses  are  taken  by  virtue  of  rules  of  Court.  In  the  Supreme  Court,  Rule  81st. 
District  Couit,  City  and  County,  Rule  4rth.  Common  Pleas,  Rule  22th,  and  in  the 
Circuit  Court,  Rules  l'2th  and  I6lh. 

A  rult-  to  take  depositions  de  bene  esse  of  going  witnesses,  &cc.  may  be  granted 
before  the  return  day  of  the  writ.  Gilpin  v.  Semple,  1  Dall.  Rep.  251. 

So  whtre  defendant  was  in  confinement,  upon  affidavit,  &c.  Stotesbury  v.  Ca- 
venhoven,  ibid.  1 64. 

In  JWa'  Forfr,  depositions  of  witnesses  in  certain  cases  may  be  taken,  de  bene 
esse,  by  a  Judge's  order,  without  the  consent  of  the  opposite  party,  but  upon  no- 
tice. 

The  examination  may  be  taken  after  the  commencement  of  the  suit,  and  before 
issue  joined.    Concklin  v.  Hart,  1  Johns.  Cas.  103.  Jlumfoi-d  v.  Church,  ibid.  147. 

The  mode  of  examining  the  witnesses,  and  of  returning  their  examinations,  must 
follow  strictly  the  Statute.  Vide  Vandervoot  v.  Col.  Ins.  Co.  3  Johns.  Cas.  157. 
Eirby  v.  Watkins,  1  Caines^  Rep.  503.  fVatsony.  Delqfield,  2  Do.  260.  Bouchc- 
reau  v.  Le  Guen,  2  Johns.  Rep.  196.  Hackley  v.  Patrick,  ibid.  478,  Biays  v. 
J\Ierrihew,  3  Do.  251.   Coles  v.  Thompson,  1  Caines'  Rep.  517. 

For  the  loose  practice  in  Connecticut  of  taking  depositions,  vide  S-wiffa  Syst. 
Ev.  112. 

For  the  practice  in  the  Courts  of  the  U.  States,  see  Act  of2ith  Sept.  1789,  s.  SO. 
IngersolVs  Dig.  377. 

But  this  does  not  not  apply  to  cases  in  the  Supreme  Court  of  the  U.  States,  but 
only  to  those  of  the  District  and  Circuit  Court.  Depositions  in  the  Supreme  Court 
can  only  be  taken,  under  a  commission,  accordii.g  to  its  rules.  77ie  ArgOy  2  Gall. 
Rep.  314,  S.  C.  in  Sup.  Ct.  U.  S.    2  Wheat.  Rep.  2S7. 


NOT  RECOUDS.  Qg 

In  criminal  cases  depositions  are  taken  by  virtue  of  the  Sta-  chup.  ii.  s.  2. 
tutes  1  &  2  Philip  8f  Mary,  c.  13,  and  2  &  3  Philip  4-  Mary,  c.  U'-i-osiuons. 
10.     By  the  first  of  those  Statutes  it  is  enacted,  "  That  justices 
of  the  peace,  or  one  of  them,  when  a  prisoner  is  brouglit  before 
them  for  manslaughter  or  felony,  before  an}^  bailment  or  main- 
prize,  shall  take  the  examination  of  the  prisoner,  and  informa- 
tion of  them  that  bring  him,  of  the  fact  and  circumstances  thereof; 
and  the  same,  or  as  much  thereof  as  shall  be  material  to  prove 
the  felony,  shall  put  in  writing,   &c."     The   profusions  of  this 
Statute,  relative  to  cases  where  the  party  is  admitted  to  bail, 
are  by  the  other  Statute  extended  to'  those  where  he  shall  be 
committed  to  prison.  On  these  Statutes  it  has  been  holden,  that 
if  in  a  case  of  felony  one  magistrate  take  the  deposition  on  oath 
of  any  person  in  the  presence  of  the  prisoner,(l)  (0)  whether  the  (i)  Rex  t . 
party  wounded,  or  even  an  accomplice  :(2)  and  the  deponent  die  j^^'ay^'cr. ' 
before  the  trial,  the  depositions  may  be  read  in  evidence  ,  but  if  Cas.  512. 
the  prisoner  be  not  present  at  the  time  of  the  examination,  it  (o)  Rex  v. 
cannot  be  read  as  a  deposition  taken  on  oath  ;  though  in  cases  ^,^^';^'y5<^''' 
where  the  party  wounded  declared  himself  apprehensive  of  death 
or  was  in  such  imminent  danger  of  it  as  must  necessarily  raise 
that  apprehension,  it  may  be  read  as  his  dying  declaration,(3)(3)  Rex  w, 
though  not  signed  by  the   witness. (4)     This  Act  of  Parliament  f?l".°'gg'g 
only  extends  to  cases  of  felony,  and  therefore  such  examination 
cannot  be  read  on  an  information  for  a  libel.(5)  ^ie'mmy<^  &^ 

Windliam . 

2  Leacli.  Cio, 
Depositions  taken  according  to  the  proviso  in  the  30th  sec.  of  the  Judiciary  Act  of  Cas.  99Q. 
ir89,c.  20,  under  a  declimus  potestatem,  according  to  tlic  usage,  when  it  may  be  neces- 
sary, are  under  no  circumstances  to  be  considered  as  taken  f/e  be7ie  esse,  whetlier  the  (^).      ^^  '''' 
witness  reside  beyond  the  process  of  the  Court  or  widiin  it;  the  provisionsof  the  Act  og,      ' 
relative  to  depositions  de  bejie  esse,   being  confined  to  those  taken  under  the  enact- 
ing part  of  the  section.   Sergeants  les.  v.  Biddle  et  al.  4  Wheat.  Rep.  508.     In  re- 
ference to  depositions  taken  de  bene  esse,  and  on   commissions  in  the   U.  Slates, 
Courts,  vide    Grant  v.  J\'aylor,  4    Crcmch's  Hep.  224.    Beal  v.  Thompson  et  al. 
8  Do.  70.  The  Argo,  2  GaUis.  Jiep. Sli,  S.  C.  in  Sup.  Ct.  U.  S.     2  Wheat.  Rep. 
287.     Gilpins  v.  Conseqita,  1  Peters''  Rep.  85.     Les.  of  Bro-wn  v.  Galloway,  ibid. 
291.   Willing  et  al.  v.  Coiiseqna,  ibid.  301. 

Wliere  a  commission  was  sent  to  a  foreign  country,  and  the  government  refused 
to  let  tlie  commissioners  act,  as  being  an  assumption  of  sovereign  power,  but  it  w:is 
executed  by  the  Judge  of  a  Court  of  the  coinitry,  in  the  presence  of  tlie  commis- 
sioners, tlie  depositions  of  the  witnesses  wei'e  admitted  ;  but  the  Court  observed 
that  tliey  would  see  that  the  evidence  was  fairly  taken.  Winthrop  v.  Un.  Ins.  Co^ 
C.  C.  U.  S-  Penn.  2  Condrfs  J\TarshaU,  700,  n' 

The  Circuit  Court  of  the  V .  States,  will  issue  letters  rogatory,  for  the  purpose  of 
obtaining  testimony,  when  the  government  of  the  place  where  the  evidence  is  (o  be 
obtained  will  not  permit  a  commission  to  be  executed.  ,\'elson  et  al.  v.  U.  States, 

1  Peters'"  Rep.  235.— .\i\r.  Eu. 

(0)  "Vide  Rex  v.  Smith,  2  Stavkic'n  Rnp.  209.  ibid.  1  Holt's  jV.  P.  Rep.  611.~ 

\M.    El). 


91  PUBLIC  WRITINGS, 

Chap.  11.  s.  2,     In  like  manner,  dejDositions  taken  before  a  Coroner,(l)  have,  in 
epositions.  ^.^ggg  ^^f  ^|jg  death,  or  absence  beyond  sea,  of  the  witnesses,  and 
,  where  there  is  reason  to  believe  that  the   prisoner  sent  them 

wicli's  case,  awaj,(  2)  been  used  on  a  trial  for  murder.*  And  where  a  preg- 
1  Lev.  180.  nant  woman  died  after  examination,  but  before  an  order  of  filia- 
(2)  Tlmtcher  tion,(3)  such  examination  taken  under  the  Stat.  6  G.  2  c.  31,  was 
kA\:iiiei-^  held  to  be  admissible  evidence  on  an  application  to  the  Quarter 
Jones,  53.  Sessions  to  make  an  order  of  filiation  on  the  putative  father ; 
A  ide  liar-      ^^^  uncontradicted,  to  be  conclusive.     And  a  still  stronger  ef- 

risoii's  crise,  .  _  ~ 

St.  Tr.  496.    fect  is  bj  the  Stat.  33  Geo.  3  c.  9,  given  to  an  examination  of  a 

.  „  soldier  under  the  mutiny  Act,  which  may  be  read  at  any  future 

Raveiistnne,    time,  whether  he  be  living  or  dead,  as   evidence  of  his  settle- 

5  T.  Rep.  o/o.  ,Yient.(4)     But  in  a  case(5)  where  two  justices  had  taken  the  ex- 

(4)  Rexw.  aminatiou  of  a  common  pauper  relative  to  his  settlement,  but 
Avinuinste"  *^^^  ^^^  remove  him  thereon,  and  he  afterwards  became  insane, 
3  Barn.&c       the  Judges  of  the  Court  of  King's  Bench  were  equally  divided  on 

the  question,  whether  two  other  justices  could  remove  his  family 

(5)  Rex  V.     on  that  examination. 

Eiiswell,  -  1        I  1  •      •!  •  J  1 

ST.  Rep. 707.  Several  other  cases  under  similar  circumstances,  have  since 
come  before  the  Court ;  in  one,(6)  the  pauper  having  been  exa- 
(G)Rexi;.  mined  and  removed  by  two  justices,  after  notice  of  appeal,  and 
Couniley',  before  the  trial  of  it,  absconded,  and  could  not  be  found  ;  never- 
1  East,  373.  theless  the  Court  held,  that  the  respondents  could  not  read  his 
examination  on  the  hearing  of  the  appeal  ;  and  in  two  subsequent 
(7)  Rex  V.  cases,(7)  the  Court  of  King's  Bench  declared  that  the  evidence 
(Viry  Fry-    QJferg^  [^  ^j^g  c^se  of  the  Kins;  v.  Eriswell  was  not  admissible, 

stone,  °  ,  1        J        I        r     u 

i2  East,  54.      and  rejected  a  similar  examination  even  after  the  death  ot  the 

Rex-y.Aberg. 

W illy,  ibid.  Go.  P^"P^^' 

It  was  before  observed,  that  a  verdict  could  not  in  general  be 

given  in  evidence  against  a  man  who   was  not  a  party  to  the 

cause,  and  consequently  had   no  power  to  cross-examine  the 

Rushwoi-th  r.  witnesses.     This  rule  applies  equally  to  the  case  of  depositions 

Countess  ot     ^vhich  are,  as  to  a  stranjier  to  the  cause,  mere  ex  parte  examina- 

Pembroke,  °  •  i  i 

Hard.  472.     tions  ;  and  therefore,  unless  in  those  particular  cases  where  the 

*  In  the  case  of  the  King  v.  Eriswell,  it  was  argued  by  Mr.  J.  Bclleu,  that  the 
examination  of  the  ])auper  was  admissible;  and  in  answer  to  tiie  objection,  that  it 
■was  taken  in  the  absence  of  the  parties  to  be  affected  by  it,  he  instanced  the  case  of 
depositions  taken  before  a  Coroner,  whicli  were  always  evidence,  though  the  party 
vas  not  present.  I  do  not  find  that  this  point  has  been  expressly  decided  in  any  re- 
ported case  ;  Mr.  J.  Bullku  is  reported  to  have  said,  that  it  was  so  settled  in  1  Lev- 
ISO,  and  Kel.  55;  certainly  nothing  of  the  kind  appears  in  those  books;  neverthe- 
less, the  practice  has  been  to  admit  them  after  the  death  of  the  witness,  without  in- 
quiry whether  the  party  was  pn-si  ni  or  ufrt  ;  and,  uolwithstandirig  the  objection  of 
counsel,  they  were  received  by  Mr.  B.  Hotham,  in  the  A7;!^  v.  Purefoy ,  Maid- 
stfjiie  Sum.  Ass.  1794. 


NOT  RECORDS.  qs 

Legislature  has  made  them  evidence  against  all  persons,    orchap.  ii.  s.  2. 
where  they  fall  within  the  exception  before  noticed,  in  the  case  i^'T'^'i'ans. 
of  judgments,  as  affording  evidence  of  the  iex  loci,*  they  are  not  ~" 

admitted  to  be  read  against  him.(/})     We  have  before  seen  that 
depositions  as  to  facts  in   dispute  are  no   evidence  of  pedigree 
more  than  in  other  cases  ;(l)  and  therefore  in  such  cases,  as  in(i)  Ante,  ir. 
others,  a  ground  must  be  laid  for  their  reception  as  proceedings  R.,„i,m.„ 
in  a  cause,  by  connecting  the  person  agaitst  whom  they  are  of- ^''-'li'SfCase, 
fered  in  evidence,  in  interest  with  the  partjiin  the  cause  wherein  pj.j.*^684. 
they  were  taken,  however  remote  the  time  of  the  examination. 
The  other  rule,  namely,  that  a  man  who  is  not  bound  by  pro- 
ceedings shall  not  avail  himself  of  them,  applies  with  still  greater 
force  ;  for  if  this  were  allowed,  he  might  ise  all  those  deposi- 

•  In  an  action  by  the  copyholder  against  the  Lord  of  a  manor,  for  a  false  return 
to  a  ynandamus,  in  which  a  custom  was  set  forth  in  respict  of  copyholds  granted  for 
two  lives,  that  the  surviving  life  might  renew,  paying  to  tje  Lord  such  fine  as  should 
he  set  by  the  horaage  to  be  equal  to  two  years  improved  talue,  and  not  guilty  plead- 
ed, depositions  made  in  an  ancient  suit,  instituted  againsu  former  Lord  of  the  ma- 
nor, by  a  person  who  claimed  to  be  admitted  to  a  cop\  h)ld  for  lives,  upon  a  custom 
for  any  copyhold  tenant  for  life  or  lives  to  change  or  fill  up  his  lives,  paying  to  the 
Lord  a  reasonable  fine  to  be  set  by  the  Lord  or  his  ste\nrd,  (and  which  depositions 
■were  made  by  witnesses  on  behalf  of  such  copyhoIder)were  held  to  be  admissible 
evidence  for  the  Lord,  as  depositions  on  behalf  of  a  perbn  standing  ^a?-jjHre  witii 
the  plaintiff,  although  it  was  not  proved  that  the  persois  making  such  depositions 
■were  co()yholders,  farther  than  as  it  appeared  from  the  depositions  themselves. 
The  Court  added  in  this  case,  that  considering  these  depositions  merely  as  declara- 
tions, they  were  still  not  objectionable  on  account  of  thei-  being  made  j!>os<  litemmo' 
tarn,  because  the  same  custom  was  not  in  dispute  in  the  hrmer  suit  as  in  the  present. 
Freeman  v.  Phillips,  iJf.&S.  486.     Sed  vide  ante,  W. 

(/>)  An  ex  parte  deposition  before  the  Board  of  Propety,  may  be  read  to  (he  jury- 
by  the  party  against  whom  the  decision  of  the  Board  is  given  in  evidence,  to  shew 
the  grounds  on  which  they  proceeded.  Gonzalus  et  al.  v.  Hoover  et  al.  6  Ser^.  (J 
R.  Rep.  118. 

Depositions  taken  officially  by  a  public  agent  residingabroad,  relative  to  the  cap- 
ture, are  evidence  in  an  action  brought  against  him  by  th(  captors.  Bingham  v.  Cab- 
bot,  3  Dall.  Rep.  39. 

In  Howell's  les.  v.  Tilden  et  al.  1  Har.  &  M  Hen.  R\p.  84,  in  an  ejectment,. the 
Court  permitted  the  plaintiff  to  prove  to  the  jury  what  a  deceased  person  proved 
before  commissioners  appointed  by  Act  of  Assembly  to  perpetuate  boundaries,  &c, 
Etvide  Bladen's  les.  v.  Cockey,  ibid.  230.  Jackson  ex.  d  Potter  \ .  Baileii ,  2  Johns 
Rep.  17. 

What  was  admitted  in  a  former  suit  between  those  wliose  interest  is  represented 
by  the  parties  to  the  suit,  will  be  admitted  in  evidence.    Fitch  v.  Hi/de,  Kirb.  Rep. 

Depositions  taken  in  a  suit  relative  to  the  same  subject  matter,  cannot  be  read  in 
a  subsequent  cause  between  different  parties.  Rotve  v.  Smith,  I  CaU.  Rep.  iSJ. 
Vide  Stevens  v.  Payne,  2  Roofs  Rep.  83. 

The  deposition  of  a  witness  who  afterwards  becomes  interested,  and  is  in  full  life 
at  the  time  of  the  trial,  is  not  admissible.    Irwin  v.  Reed  et  al.  4  I'm/es'  Rep.  512. 

Vide  ante,  p.  90.— Am.  Ed. 


QQ  PUBLIC  WRITINGS, 

Ch.ip.  II.  S.2.  tions  which  made  for  him,  and  those  of  a  contrary  description 

Deiiosiiions.   could  not  be  used  agiinst  him,  because  he  had  no  power  tocross- 

' examine  the  witnesses. 

1  shall  here  mention  only  one  case  in  which  depositions  are 
made  evidence  against  all  persons  by  particular  Act  of  Parlia- 
ment, and  that  is  in  he  case  of  bankruptcy.  By  Stat.  5  Geo.  £ 
c  SO,  it  is  enacted,  '  that  commissions  and  depositions,  or  any 
part  of  such  depositons,  may,  on  petition  to  the  Lord  Chancel- 
lor, be  entered  on  record  ;  and  in  case  of  the  death  of  the  wit- 
nesses ^rot'i^g"  the  binkntptci/yOv  in  case  the  commission,  depo- 
sitions, proceedings,  or  other  matters  or  things,  shall  be  lost  or 
mislaid,  a  true  copy  af  such  commission,  &c.  signed  and  attested 
as  therein  after  is  mntioned,  shall  and  may,  upon  all  occasions 
be  o-i%'en  in  evidence  to  prove  such  commission,  and  the  bank- 
ruptcy  of  the  persoi  against  whom  such  commission  hath  been 
or  shall  be  awarded,  ir  other  matters  or  things.(5) 

If  a  commission  iisue,  and   a  witness  prove  an  act  of  bank- 

.Tanson  v.       ruptcy  on  d^particulo'  day,  and  die,  his  deposition,  when  enrolled, 

}y''^°"' .,      may  be  given  in  evitence  to  prove  the  act  of  bankruptcy,  and 

Doiigl.  2t4.  J         a  .       ,       "^  .  1^1 

the  time  it  was  commtted,  against  any  person   whatever  ;  and 

therefore,  if  a  credior  of  the   bankrupt  levy  his  goods  under 

an  execution  after  tie  day  on  which  such  act  of  bankruptcy  is 

proved,  the  depositi)n  is  sufficient  to  overturn  it. 

It  is  well  observel  by  Mr.  Douglas,  in  a  note  on  the  case  of 
Janson  v.  Jfilson,  thit  there  is  a  remarkable  inaccuracy  in  this 
Act  of  Parliament.  After  prescribing  the  manner  of  entering 
the  commission,  &c.  Df  record,  it  says,  that  true  copies,  signed 
as  therein  after  mentoned,  shall  and  may  be  given  in  evidence  ; 
but  there  is  not,  in  tie  subsequent  part  of  the  clause,  nor  of  the 
Act,  any  provision  for  attesting  and  signing  the  entries  so  made. 
It  is  only  enacted  tlat,  "  the  Lord  Chancellor  shall  appoint  a 
person  who  shall,  bj"  himself  or  his  deputy,  by  a  writing  under 
his  hand,  enter  of  rtcord  such  commission,"  &c.  On  a  liberal 
construction  of  the  Act,  it  might  possibly  be  implied  that  power 
was  given  to  such  oficer  to  certify  his  enrolment,  and  then  his 
certificate  would,  as  we  have  seen  in  other  instances,  be  suffi- 
cient evidence  of  the  copy ;  but  the  safer  way  would  certainly 
be  to  prove  it  examined  with  the  original  also. 

It  is  a  general  rule,  applicable  to  all  proceedings  in  Courts  of 

(9)  Certified  copies  of  the  proceedings  filed  in  the  District  Court  of  the  Commis- 
sioners, under  the  late  bankrupt  law  of  the  U.  States,  were  held  prima  facie  evi- 
dence, against  all  persons  of  the  commission,  trading,  and  act  of  bankruptcy.  Ru^a'. 
V    JVest,  1  Binn.  Sep.  263.— A"^.  Ed 


NOT  RECORDS.  Qy 

Equity,  that  in  order  to  give  in  evidence  an  answer,  depositions,  chap.  Ii.  s.  2, 
affidavits,  or   any  other   interlocutory  proceeding  in   a   cause,  a  Oeposiiions. 
foundation  must  first  be  laid  by  proof  of  all  the  former  stages  of  ■ 

it  ;(1)  as  the  bill  to  make  way  for  the  answer  ;(2)  the   bill  and  SJifc'ib.*' 
answer,  or  that  the  defendant  was  in  contempt,  as   the  founda-  ^'w  Ev.  56. 
tion  for  the  depositions,  and   so  on  ;  otherwise   two  inconve-  (o)  piercy  v, 
iiiences  would  follow;  first,  that  the  whole  context  and  bearing ^'''. '!'•  J';"^s, 
of  the  evidence  would   not  appear;  secondly,  that  the  Court  Law  Ev.  65. 
could  not  see  whether  it  was  a  regular  proceeding  ;  and  if  not, 
then  the  answer  or  depositions  would  have  only  the  effect  of  a  Style,  446. 
mere  voluntary  aflidavit,  which  if  made  by  a  stranger,  could  not 
be  received  as  any  evidence  at  all,  because  there  the  party  would 
have  no  opportunity  of  cross  examination  ;  and  if  by  the  party, 
then  only  under  the  circumstances   and  manner  before  stated; 
but  where  on  a  bill  filed  for  the  examination  of  witnesses,  the  Cazenove  v. 
Court  of  Equity  made  an  order  before  answer  or  contempt,  that ,  ^j^^"s.'  . 
a  witness  who  was  going  abroad  should  be  examined,  and  a  copy 
of  the  interrogatories  was  handed  over  to   the  adverse  party, 
and  after  examination  another  order  was   made  for  publication 
with  the  express  view  of  his  deposition  being  read  on  a  trial  at 
law,  it  was  held  that  the   deposition   might  be  read  though  the 
party  did  not  in  fact  cross  examine  the  witness.     As  to  the  in- 
terrogatories, it  may  be  taken  as  a  general  rule,  that  the  ques- 
tion proposed  by  them  should   not  be  leading.     If  depositions 
are  taken  in   answer  to   such   interrogatories  in  the  Court  of 
Chancery,  that  Court  will  suppress  them  ;  and   the   like  would 
be  done  on  depositions  taken  in  a  Court  of  Law  under  a  com- 
mission.    But  where  ancient  depositions  were  produced,  which 
had  been  in  other  respects  duly  taken,  and  suffered  to  pass  pub- 
lication in  the  Court  of  Exchequer,  the  Court  of  King's  Bench 
held  them  to  be  admissible  in  evidence,  although  the  interroga- 
tories were  so  leading  as  necessarily  to  dictate  the  answer  to  Williams  f, 

U^      •  ,   ■.  Williams, 

begiven.(>-)  4M.&S.497, 

()•)  In  Pennsylvania,  any  deposition  tiiken  by  the  rules  of  la  w,  which  could  be  read 
on  the  trial  of  the  cause,  may  be  read  in  evidence  in  any  subsequent  cause  where 
the  same  matter  is  in  dispute  between  the  same  parties,  their  heirs,  ext-cutors,  ad- 
ministrators, or  assigns,  jlct  of  'iSih  March,  1814,  l.aivs  of  Penn.  Qt/i  vol.  by 
Read,  p.  208. 

In  Jflassaclnisetis ,  a  deposition  taken  in  perpetuam  rei  testimoniam,  cannot  be 
read  in  evidetice,  unless  recorded  within  three  months.  Bradslreet  et  al.  v.  Bald- 
wjn,  11  Masn.  Rep.  229. 

In  JN'Vw  York,  tlie  manner  of  perpetuating  the  testimony  of  witnesses,  is  pointed 
put  and  regulated  by  Stat.  1  J\'.  R.  L.  C.  31.  Se.fS.  36.  p.  455. 

A  leading  question  must  be  objected  to  at  the  un,e  of  taking  the  deposUion.  Sfiec, 
ler  V.  Speer,  3  Binn.  Rep.  130.  S.  P.  Lcs.  of  Snyder  et  al.  v.  Snyder,  6  Do.  483, 

0 


<J8  PUBLIC  WRITINGS, 

Chap.  n.  s.  c.     In  order  further  to  explain  what  is  before  said,  as  to  the  ne- 
Duosnioi.s.  cessity  of  the  proceedings  being  regular,  to  make  the  depositions 
■"="•'-——'  evidence,  it  may  be  necessary  here  to  mention,  that  the  distinc- 
tion whicli  has  been  taken   in  the  books,  as  to  the  regularity  of 
proceedings  is  this, — if  the  bill  be  dismissed  because  the  plain- 
tiflFis  irregular  in  his  proceeding,  as  where  a  devisee,  on  a  suit 
commenced  by  his  devisor,  brings  a  bill  of  revivor,  and  several 
depositions  are  taken,  and  then  the  cause  on   hearing  is   dis- 
Biackhouse  r-.  jyjjssej   because  a  devisee  claiming  as  a  purchaser,  and  not  by 

Mi<l<lle(on,  .  ^   ,     .  ,  ■,?    r  ■  ■      \i  ■  , 

1  CI). c.-is.  175. representation,  cannot  bring  a  bill  oi  revivor;  in  this  case,  the 
Siiutiiv.VeaU  depositions  can  never  be  read  in  any  other  cause,  because  there 

1  Lord  Kaym.        >  ,,,/-,      V.  ,  -r 

735.  was  no  cause   regularly  betore  the   Court :  but  ii  a  cause  was 

once  properly  before  the  Court,  though  the  bill  was  dismissed 
because  it  was  not  a  matter  fit  for  equity  to  decree,  the  deposi- 
tions will  be  evidence. 
General  Rule  We  have  before  seen  that  even  a  judgment,  when  destroyed, 
iWrr.Ui^ s^  '"^y  be  proved  by  secondary  evidence:  this  rule  applies  univer- 
Roch  V.  Rix  sally  to  every  species  of  evidence,  and,  therefore,  where  it  ap- 
Giib.  L:.»  Ev.  peared  from  the  evidence  of  the  proper  officer,  that  the  office 
5  Mod. 'ill.  had  been  searched,  and  the  bill  could  not  be  found,  the  answer 
„  was  permitted  to  be  read  without  it,  so  ancient  depositions  have 

Brvam  v.  ,  '  .        .  .  .  .,  ' 

Bd'oih,  been  received  as  evidence,  without  bill  or  answer :  but  to  enti- 

2  Price,  2.>4.  ^[q  g^  party  to  deviate  so  much  from  the  general  rule,  they  ought 
Biowci  V.  certainly  either  to  be  fortified  by  great  length  of  time,  or  else 
^K'^b'""'^'^'    some  other  reasonable  evidence  be  given,  that  the  bill  had  been 

once  there,  and  in  wliat  way  it  had  been  lost. 

The  decree  is  evidence  on  the  same  principle  as  a  judgment 
Case  of  Man- in  ^  Court  of  Law,  and  subject  to  the  like  rules,  viz.  that  where 

clustc'r     3  lis  '  o 

DouK.  222      ^^  respects  private  property  or  individuals,  it  is  only  evidence 
note  (13.)       against  parties  to  the  suit,  or  others  claiming  through  them  ;(s) 
but  when  the  question  is  of  a  public  nature,  it  is  then  evidence 
against  all  persons  standing  in  a  similar  situation  with  the  par- 
ties to  it. 
Decree  in  While  the  decree  remains  in  paper,  it  cannot  be  read  in  evi- 

dence for  the  purpose  of  proving  its  contents,  without  also  prov- 
ing copies  of  the  bill  and  answer,  unless  they  are  recited  at 

Under  the  last  generid  viierrogatonj,  a  witness  examined  under  a  commission, 
may,  in  his  answer,  state  facts  not  drawn  forth  by  the  previous  particular  interro- 
gatories. Perdval  v.  Hickey,  18  Jolins.  Rep.  245. — Am.  Ep. 

(«)  A  decree  in  Chancery  finding  an  immalerialfact,  is  not  admissible  in  a  subse- 
quent suit  at  Law,  between  the  same  parties,  to  prove  such  fact.  IJotchkiss  v.  JVl- 
chols,  S  Dai/''s  Rep.  1.38. 

A  decree  in  one  case,  cannot  be  used  as  a  defence  in  another,  where  the  subject 
jnaiter  is  distinct  and  independent.  X^o?j  et  al,  v.  Tallmadge  et  al.  2  Johns.  Cas. 
501— Am.  Ed. 


NOT  RECORDS.  qq 

length  in  it;(l)  but  when  the  only  object  of  the  evidence  is  tochap.  ii.  8,2. 
shew  that  a  decree  was  in  fact  made,  or  the  decree  has  been  ex-  ^*'"'=f''iing8 
emplified  under  the  seal  of  the  Court,  and  enrolled,  is  of  itself  chI  an.i  Admi- 
evidence  :  and  the  opposite  party  rnay,  in  the  latter  case,  shew"*''*  Couns. 
that  the  point  in  issue  in  that  suit  was  different  from  that  before        '         ' 

the  Court*  TliMne't  v. 

Of  the  same  authority  as  answers,  depositions,!  and  decrees  of  J/''^^';''^''"* 

.  .  liul.N. P. 235 

the  Courts  of  Equity,  are  the  depositions,  answers  to  libels,  and 
sentences  in  the  JEcclesiastical(t)  and  Jldmiralty{u)  Courts,  on  a 
question  arising  within  their  respective  jurisdictions,(2)  ('i)Vi(le 

Therefore,  probate  of  a  will  of  personal  property,  letters  of  ad-  Ev.  07. 
ministration,('3)  or  a  sentence  in  a  matrimonial  cause  in  the  one'f.'^;"'  '^^i- 
Court,  or  an  adjudication  of  prize,  &c.  in  the  other,  are  evidence  MudMay, 
of  the  rights  of  the  parties.     The  right  to  personal  property,  un-  ^  ^^''^  ^^- 
der  a  will,  can  be  proved  by  no  other  evidence  than  the  pro-  (3)  Ke  ..pton 
bate  ;(4)  and  while  that  exists,  no  person  whatever  can  be  per-  ^-  ^^^^^ip^V 
mitted  to  shew  that  it  was  improperly  granted,  or  after  it  is  re-  1O8. 
pealed  to  avoid  any  payment  which  has  been  made  under  it  :(5}  .^«  p^ 
But  it  may  be  shewn  that  the  seal  to  the  probate  was  forged,  ori'-hnbitants  of 
that  letters  of  administration  have  been  repealed,(6)  to  prevent  4 Yg|.p'^'*2g8 
any  right  being  claimed  under  them,  for  that  does  not  controvert 
the  judgment  of  the  Ecclesiastical  Court,  but  shews  that  no  such  D„nfias^" ""' 

ST.  Rep.  125. 

•  In  the  case  of  Wlieeler  v.  Loud,  Guildhall,  9  Ann.  (~Com.  Dig-.  Ev.  c.  I  )  it  (6)  Noel  v. 

■was  held  by  Trevor  C.  J.  that  if  the  bill  and  answer  were  recited  in  the  decretal  Wills,  1  Siu. 

...  -      359 

order,  it  was  sufficient ;  but  if  only  so  much  is  recited  as  is  deemed  necessary  to  in-  r^,', 

'  '  ■'  r>        ,       /      »    J  t^hitliester  v. 

troduce  the  decretal  part,  the  bill  and  answer  must  be  proved.    Dozig-l.  it9.    And  pf,|||jpj   gj^, 

doubts  have  been  entertained  whether  the  decree  under  seal,  which  does  not  state  T.Raym.405. 

the  bill  and  answer,  can  be  read,  without  a  foundation  bt-ing  laid  for  it  by  evidence 

of  those  proceedings.     Vide  Troivelly.  Castle,  1  Keb  91, 

f  In  Mildmay  v.  Mildmay,  a  doubt  was  made  whether  depositions  in  the  Spiritual 
Courts  were  admissible  ;  it  is  cleat  they  are  not,  when  taken  in  any  cause  not  wiihia 
their  jurisdiction,  but  where  they  have  jurisdiction,  there  seems  to  be  no  obj'Ciion. 
Vide  Gilb.  Law  Ev.  67. 

{i)  In  a  libel  for  a  divorce  for  adultery,  the  confession  of  the  respondent  alone,  is 
inadmissible  to  prove  the  fact  of  adultery.  Baxter  v.  Baxter,  1  Mass.  Rep.  345. 
Hollandy.  Holland,  2  Do.  154. 

(m)  a  sentence  in  a  Court  of  Admiralty  issufticii'nt  evidi-nce  of  a  condeirination, 
■without  shewing  the  previous  proceedings.  G(trdere  v.  Tlie  Col.  Ins.  Co.  7  Johns. 
Rep.  514. 

In  general,  judgments  and  decrees  are  evidence  only  in  sui's  i<etween  parties  and 
privies.  Barr  v.  Gra*z,  4  Wheat.  Rep.  2i20. 

A  decree  of  Admiralty,  restoring  to  ihi-  claimant  property,  libelled  as  priZ'-,  was 
offered,  in  connection  with  other  facts,  us  prima  facie  <  vidence  ih'it  such  pnni'  rty 
belonged  solely  to  the  claimant,  was  admitted.  Thompson  v.  Stewart,  3  Cun.  Rep- 
171. 

By  the  general  maritime  law,  a  sentence  ot  conlemuation  e.\tinguishes  the  title  Of 
the  original  proprietors.  The  Star,  3  Wheat.  Rep.  78.— Aml.  Ed 


100  PUBLIC  ^vR^^NGs, 

Chi.p.  II.  s.  2.  judgment  exists.  So  too,  where  an  inferior  Court  grants  probate, 
^'fo"'!"^  *t  '"^J  ^^  proved  that  the  testator  left  bona  nolabiliu,{\  )for  that 
Courts.  shews  that  the  Ecclesiastical  Court  had  nojurisdiction, and conse- 

quently,  that  the  whole  is  void,  as  being  coram  non  judice.*  (v) 

(l)lbid. 

'  •  See  further  as  to  these  sentences,  post. 

(v)  The  i-ule8  of  evidence  in  Courts  of  Probates,  are  the  same  as  in  Courts  o£ 
Common  Law,  unk-ss  alit  red  by  Staiute.     Eveleth  v.  Craiich,  15  JMaes.  Hep.  305. 

A  decree  of  a  Court  of  Probate  of  Wills,  is  conclusive,  and  caimut  be  inquired 
into  until  reversed  or  regularly  set  aside    Bush  v.  Sheldon,  1  Day''s  Rep.  170. 

In  JMassachusetts,  an  -administrator  canmtt  prosecute  or  defend  an  ;<ciion,  ii:  any 
of  the  Courts  iheie,  by  virtue  of  litters  of  admiiistration  granted  in  another  State. 
Goodwin  v.  Jones,  3  Mans.  Rep.  ."ili.  Borden  v.  Borden,  5  Do.  67.  Stevens  udm. 
wGavlord.  11  Do.  256.  lAingdon  et  ul.  udm.  v.  Potter,  ibid  313. 

la  Connecticut,  an  admiuisirator  being  appointed  in  the  State  where  the  deceased 
dwelt,  mav  suf  for  the  recovery  of  any  property  belonging  to  the  deceased.  J\tcole 
V.  Mumf.rd,  Kirb.  Rep.  270. 

So  in  Pennsylvania.  »1/'  Cullough  v.  Yonnj,  I  Binn.  Rep.  63.  S-  C.  4  DalL 
Rep.  292. 

But  an  executor  qualified  in  Demarara,  cannot  act  as  such  until  qualified  accord- 
ing t'>  the  laws  of  Connecticut.  Perkins  v.  fj'illiams,  2  Root's  Rep.  462. 

But  letters  of  administration  granted  by  the  Archbishop  of  I'orh,  in  Great  Bri- 
tain   are  not  sufficient  authority  to  maintain  an  action  in  Pennsylvania.     Greme 
et  al.  V.  Harris,  1  Dull.  Rep.  456. 
/  A  decree  of  a  Court  of  Probate  is  conclusive  on  the  parties,  until  disaffirmed  on 

appeal   or  stt  aside   in  due  course  of  law,  and  cannot  be  inquired  into  ccillaieraily. 
Sheldon  v.  Bnsh  et  al.  1  Day's  Rep.  170. 

Ilis  likewise  conclusive  in  establisbin^  a  will.  Jndson  v  Lake,  3  Do.  318. 

Quere,  If  the  probate  of  a  will  in  Rhode  Island  be  not  conclusive,  as  well  to  real 
as  to  personal  estate.  Speyicer  et  vx.  v.  Spencer,  1  GaUis.  Rep.  622. 

In  JVew  Foj'fc  the  Courts  do  not  take  notice  of  letters  testamentary,  or  letters  of 
administration  granted  out  of  the  State  ;  and  this  is  the  law  ui  England siixiX  most  of 
ihe  States.  Morrellw  Dickey,  t  Johns.  Ch.  Rep.  153.  Williams  et  ul.  v.  Storrs, 
6  Do.  353.  Lee  v.  Bank  of  England.  8  Ves.  Rep.  44.  Et  vide  in  CoTinecticut,  Riley 
V.  Riley,  3  Daips  Rep  74.  Et  vide  Femvick  v.  Sear's  adms.  1  Cranch's  Rep.  259. 
Good-win  v.  Jones,  3  Mass.  Rep.  514.  Dixoji's  exrs.  v.  Ramsey's  exrs.  3  Cranch's 
Rep.  319.  Butts'  adms.  v.  Price,  Rep  in  Ct.  of  Conf.  68.  But  it  seems  a  volun- 
tary payment  to  an  administrator  is  good.  6  Johns.  Ch.  Rep.  153. 

The  administrator  who  lakes  out  letters  of  administration  m  one  State,  may  m 
^ywi*/,  be  called  upon  by  a  creditor  to  account  for  the  assets  in  another.  Bryan 
et  al.  V.  MGee.  C.  C.  Jpril,  1809,  M.  S.  Rep. 

In  the  cASf  oi  Jltkins  v.  Sinith,  2  Jltk.  Rep.  64,  case  60,  it  was  said  by  Lord  Chan- 
cellor PLiRDWiCKE,  that  ecclesiastical  jurisdictions  are  limited  within  their  particular 
districts,  and  an  administration  taken  out  in  England  will  not  extend  to  the  colonies 
in  .America  ;  but  if  an  executor  sends  over  an  exemplification  of  a  probate  to  Mary- 
land, or  any  other  colony,  the  person  who  is  employed  as  an  agent  there  by  the  exe- 
cutor, may,  by  letter  of  attorney  from  him,  collect  in  the  effects  of  the  testator, 
and  he  is  chargeable  as  much  as  if  the  executor  had  got  them  in  himself. 

Where  a  testator  leaves  two  wills,  one  in  Virginia,  and  the  other  in  England,  the 
English  will  being  the  last  in  dale,  and  his  executor  takes  out  letters  of  administra- 
tion on  the  posterior  will,  in  England,  this  does  not  ipso  facto  repeal  letters  of  admi- 
nistration which  have  been  granted  in  Virginia,  on  the  first  will;  but  the  English 
executor  must  first  qualify  by  giving  bond  and  security  as  the  law  directs.  Brom- 
ley's adm.  V.  Duke  et  al.  1  Randolph's  Rep.  81, 


NOT  RECORDS.  ^qj 

Fi'om  what  has  been  already  said,  it  may  be  collected  that  tlic  ciiap.  ir.  s.  'j. 
Mrobate  of  a  will  cannot   be  received  as  evidence  for  any  pur- ^''"^f  ^•^■'.''"S^ 
pose,  in  a  question  concerning  freehold  lands;  for  as  to  that  they  Comis. 
they  have  no  jurisdiction.(a^)  — 

The  judgment,  or  sentence  of  a  foreign  Court,  is  received  in     ■ 
our  Courts  as  evidence  of  the  right  it  establishes,  or  the  fact  di- 
rectly found  by  it.     Indeed,  when  the  party  who  claims  the  be- 
nefit of  it  applies  to  our  Courts  to  enforce  it,  and   voluntarily 
submits  it  to  their  jurisdiction,  they  treat  it  not  as  obligatory  to 
the  extent  to  which  it  would  be  in  the  country  where  it  was  pro- 
nounced, nor  to  the  extent  to  which  by  our  law  sentences  and 
judgments  are  ;(1)  and  therefore  though  in  an  action  upon  a  fo-(i)  Pt-tEjic, 
reign  judgment,  the  judgment  is  prima  facie  evidence  of  the^^jj^j^i    j. 
debt,  it  is  not  conclusively  so  ;  but  our  Courts  will  examine  into409. 
it,  and  for  that  purpose,  receive  evidence  of  what  the  law  of  the 
foreign  state  is,  and  whether  the  judgment  is  \varranted  by  that 
law.(2)(j/)     In  all  other  cases,  our  Courts  give  entire  faith  and(2)  Wniker- , 

Wliiiier, 
Dougl.  1. 

Qi/ere,  What  efFect  the  recording  in  Virginia,  o^  Xhs  exemplification  of  a  will, 
and  the  probate  thereof  in  the  Prerogative  Court  of  the  Archbishop  of  Canterbtirij, 
will  have  in  Virgiiiia.  ibid. — Am.  Ed. 

(a-)  The  probate  of  a  will  is  conclusive  as  to  personal  estate,  while  (lie  letters 
testamentary  remain  unrevoked,  but  as  to  the  realty  it  is  on\y  prima  facie  evidence. 
Coates  V.  Hughes,  3  £i?m.  Hep.  498.  Vangordoii  v.  Vangordon,  cited  3  Jiinn. 
Hep.  506. 

The  probate  of  a  will  is  prima  facie  evidence  in  JWtrth  Carolina.  Slavkt/  etvx. 
V,  Kean,  Tatjl.  Rep.  93. 

Qucre,  Whether  the  probate  of  a  will  in  li/iode  Islatid  he  not  conclusive,  as  well 
as  to  real  as  to  personal  estate.  Spencer  et  iix.  v.  Spencer,  1  Gall.  Rep.  C22. 

A  probate  made  ex  parte,  at  the  instance  of  defendant,  in  an  issue  then  pending 
to  try  the  validity  of  a  will  of  later  date,  is  not  valid.  liantz  v.  Ilidl,  2  J]in?i.  Rep. 
511.' 

The  certificate  of  the  Register  of  wills,  that  a  will  of  land  had  been  duly  proved 
and  approved  befure  him,  and  a  copy  thereof  annexed,  is  pri?na  facie  evklencc,  al- 
though a  copy  of  the  probate  is  not  set  out.  Logan  v.  Watts,  5  Serg.  &  R.  Reh. 
212. 

The  record  of  a  will,  like  that  of  a  deed,  is  only  prima  facie  evidence  of  its  authen- 
ticity. Jackson  ex  d.  Woodhull  v.  Rntnsey,  3  .Tohns    Cas.  234. 

In  Corinecticnt,  a  flecree  of  a  Court  f)l  Prohati-s  respecting  a  will,  is  conclusive  as 
to  real  property.  Vide  Bush  v.  Sheldon,  1  Daifs  Rep.  170.  Judson  et  vx.w 
Lake,  3  Do.  318. 

The  copy  of  a  will  certified  by  the  Clerk,  without  the  seal  of  the  Court,  is  evi- 
dence. Roiuland  v.  M'Gee,  4  Bibb's  Rep.  439. — Am.  Ed. 

(i/)  Ry  the  constitution  of  the  United  States,  it  is  declared,  that  "full  faith  and 
credit  shidl  be  given  in  cath  State  to  ihe  public  acts,  records,  and  judicial  proceed- 
ings of  every  other  State  ;  anil  Congress  may,  by  giiicial  laws,  prescribe  the  maii- 
rer  in  which  such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof."    Jlrt.  IV.  Sec.  1. 

By  an  Act  of  Congres?  passe. I  the  26th  ..t  May.  17'J0,  (2  Laws,  U.  S.  102,)  thu 
manner  of  authenticating  legislative  acts  and  judicial  proceedings,  is  preecribed  ; 


j^Q2  PUBLIC  WRITINGS, 


Chap.  U.  s.  2.  credit  to  the  sentences  of  foreign  Courts,  and  consider  them  as 
Proceedings    conclusive/l )     Therefore,  if  a  man  be  acquitted   of  a   crimera) 

in  Foreign  .  ^.  -'  .  .  ^  j 

Courts.  committed  in  a  foreign  country,  or  discharged  from  a  demand 

-~ arising  there(3)  by  the  sentence  of  its  Courts,  or  the  validity  of 

(t)Pei-  Eyre, . 

lit  supra, 

"  and  the  said  records  and  judicial  proceedings,  authenticated  as  afores»id,  shall 

(2)  Hutchin-  have  such  faitli  and  ciedit  given  to  them,  in  every  Court  within  the  United  States, 
sou's cMse,  1  JJ5  j|,y^  have  by  law  or  usage,  in  the  C'lurts  of  iht  Slate  from  whence  the  said  records 
^''"'''•*^-  are  or  shall  be  taken." 

f  3')  Burrows        I>^  *<"  action  of  debt  in  Ver7)wnt  on  a  judgment  obtained  in  Connecticut,  the  Court 

V.  .lemino,  2    without  reteience  to  the  C<instilution  of  the  United  States  or  the  Act  of  C^mj;'  ess, 

Show.  733.       viewed  it  as  a  foreign  judgment,  and  decided,  that  in  a  plea  in  bar  todi  bi  upoi<  such 

judgment,  it  was  necessary  to  aver  (hat  the  judgment   was  obtained  against    the  lex 

loci  where  it  was  rt  ntlered.     Waddums  v.  Bwnham,  I  Tyl.  Rep.   233.     Vide  in 

Connecticut,  Smith  v.  Rhodes,  1  Day''s  Rep.  1G8. 

In  JVew  York,  in  an  action  of  debt  on  a  juflgment  obtained  in  Pennsylvania,  the 
defendant  pleadetl  nil  debet,  and  the  plainliflTtook  issue  on  it,  and  the  Court  there- 
'  fere  would  not  decide  upon  its  propriety.   Rush  v.Colibett,  2  Johns.  C'«s.  256.     Et 
■    vide  Jllyers  v.  M  Lean,  1  Johns.  Rep.  509.  S.  C.  2  Uo.  183. 

\n  Andrews  \ .  jyiotitgnmery  et  al.  I'J  Do.  162,  it  was  decided,  that  a  judgment, 
fairly  oblained  in  another  Slate,  was  conclusive  evidence  of  a  debt. 

The  rule  that  a  p!e;i  which  contradicts  a  record  is  bad,  prevails  as  well  when  the 
action  is  brought  in  one  State  upon  a  judgment  rendered  in  another,  as  in  the  Courts 
of  the  Slate  where  the  judgment  was  rendered.     Field  v.Gibbs,  I  Peters'  Rep.  157. 
Sed  vide  ante,  p.  67.  note(o.) 

The  general  principle  is,  that  the  decision  by  a  Court  of  competfint  jurisdiction 
in  one  nation,  shall  not  be  questioned  in  the  Courts  of  another.  Cheriot  v.  Foussat. 
3  Binn.  Rep. '■250.  Y'nie  Rogers  \.  Coleman  et  ux.  Hardin's  Rep.  Ali.  Stewart 
V.  fVamer,  1  Day's  Rep.  142.  Jenkins  v.  Putnam,  1  Bay''s  Rep.  8.  Rose  v.  Hime- 
ly,  4  Crunch's  Rep.  241. 

The  iudgmeiit  of  a  Court  having  jurisdiction  of  the  subject  matter,  is  conclusive, 
and  cannot  be  overhauled  in  a  collateral  action.  Rapelje  v.  Emory,  2  Dall.  Rep. 
231.  -S'.  C  by  the  name  of  Messier  v.  Armory,  1  Yeates'  Rep.  533.  S.  P.  Vasse  v. 
Ball,  2  Dall.  Rep.  271,  n.  Penhallow  v.  Doan^',  3  Do.  88.  103. 

But  captures  on  land  from  an  enemy  by  uiiauthoiised  individuals,  do  not  divest 
the  original  owner  of  the  right  of  property,  unless  there  has  been  some  kind  of 
condemnation  or  distribution  made  by  some  competent  authority.  Tumbull  v. 
Ross,  1  Baifs  Rep.  20. 

In  J\l'e-iO  Jersey,  in  an  action  of  debt  on  a  judgment  in  a  foreign  attachment  in  the 
Courts  of  Pennsylvania,  the  plea  of  nil  debet  was  held  good.  Curtis  v.  Gibbs  et  al. 
J'enning.  Rep.  399. 

The  rule  is  the  same  in  Pennsylvania.    Belts  v.  Death,  Addis.  Rep.  265. 
In  the  case  of  Lanning  v.  Shvte,  2  South.  Rep.  778,  it  was  held,  that  ml  debet 
vas  a  bad  plea  to  a  judgment  obtaineil  in  Aew  York. 

Et  vide  Mills  v.  Duryee,  7  Cruncli's  Rep.  481 .  Hampton  v.  Jli'  Connel,  3  Wheat. 
Rep.  234. 

In  the  Circuit  Court  for  the  District  of  Colwnbta,  the  Court  were  divided  whe- 
ther nil  debet  was  a  good  plea  to  an  action  founded  on  the  record  of  a  Court  of  Vir- 
..-  gima,  and  the  plea  of  7iul  tiel  record  was  substituted.     Thompson  v.  Jumeson,  1 

Crunch's  Rep.  286. 

In  Virginia,  a  patent  of  land  granted  by  the  State  of  J^'orth  Carolina,  is  entitled 
to  ^'full  faith  and  credit,"  under  the  Constitution  of  the  United  States,  and  its  va- 
lidity cannot  be  collaterally  drawn  in  r[ueslion.     Lassly  v.  Fontaine,  i  H.  ^  Munf. 
Rep.  146. 
In  JVorth  Carolina,  in  an  action  of  debt  on  a  judgment  in  a  sisler  State,  the  plea 


NOT  RECORDS.  j^Qg 

a  marriage  contracted  there(l)  be  decided  by  such  sentence,  the  chap.  ii.  s.  2, 
sentence  is  conclusive  of  the  fact  established  by  it.     So,  if  on  a  .^'pj'^^^'^ss 
libel  against  a  ship,  any  question  arise   on  the   law  of  nations,  C«nna. 
and  a  foreign  Court  of  Admiralty,  acting  on  that  law,  adjudge  a 

(l)P.rLord 

"~~  ~~~  Hanlvvick, 

of  nil  debet  was  held  ba<l,  and  mil  tiel  record  the  proper  plea,  as  the  judgment  was  ^  ' '^*'  ^•^'^• 
conclusive.     Wade  v.  Wade,  Rep.  in  Ct.of  Conf.  486.     Et  vide  Anon.'Z  Hayw. 
Jiep.  SOI. 

The  same  rule  is  established  in  South  Carolina.  Vide  Colemmi  v.  Guardian  of 
JVegro  Ben,  2  Bny''s  Rep.  485. 

The  \ct  ot'Cf)ni;ress  does  not  inclucfejuilgraeiils  obtained  in  the  Circuit  Court  of 
the  U.  Slates,  for  a  particidar  State,  but  only  to  judgmcnis  of  a  State  Court.  Pc- 
poon  V.  Jenkins,  2  Johns.  Cas.  119.     Col  ^  Caines'  Cos.  136. 

AS  TO  THE  EFFECT  OF  A  BANKRUPT'S  AND  INSOLVENT'S 
DISCHARGE. 

Statutes  of  bankruptcy  in  one  of  the  If.  States,  will  not  bind  acreditor,  whoisnol; 
an  inhabitant  of  thai  State,  unless  the  contract  were  made  there.  Proctor  \.jVloore 
1  Mass.  Rep.  198. 

A  discharge  under  a  bankrupt  or  insolvent  law  of  any  Stale,  is  a  good  bar  to  an 
action  brought  in  another  State,  of  wliicti  the  creditor  is  a  citizen  ;  the  contract  hav- 
ing been  made  within  the  Stale,  and  the  debtor  residing  there  at  the  time  ofmakino- 
it.    Blanchardv.  Russell,  13  Jllass   Rep.  1. 

Where  a  contract  was  made  in  Jlliibsachusetts  by  one  of  its  citizens  with  a  citizen 
of  Pennsylvania,  and  there  was  no  provision  whei-e  it  was  to  be  performed  ;  a  dis- 
charge of  the  debtor  under  (he  insolvent  law  of  Pennsylvania  was  held  to  be  no  bar 
to  an  action  upon  such  contract.    Bradford  et  al.  v.  Furrand,\S  JVIass.  Rep.  18. 

But  where  the  parties  were  all  citizens  of  another  State,  it  was  held  a  good  bar. 
Walsh  V.  Ferrand  et  al.  ibid.  19. 

A  discharge  under  a  temporary  insolvent  law  of  Jamaica,  by  which  debtors  were 
released  from  all  demands  against  them  on  surrendering  their  effects  foi-  the  benefit 
of  such  of  their  creditors  as  should  release  within  thirty  days  after  public  notice,  was 
holden  not  to  be  intended  to  operate  beyond  the  jurisdiction  of  the  government 
■where  it  was  made.     Prentiss  et  al.  v.  Savage,  13  Do.  20. 

A  person  having  a  discharge  under  the  insolvent  laws  of  the  State  of  JX'ew  York, 
was  held  liable  for  money  received  by  him,  for  the  use  of  another,  after  his  petition, 
and  before  the  date  of  his  ceitificate.     Pease  v.  Folger,  14  Do.  264. 

In  Connecticut,  a  discbarge  under  an  Act  of  insolvency  of  that  State,  discharginsj 
the  insolvent  from  all  his  debts  may  be  pleaded  in  bar  to  an  action  of  contract,  en- 
tered into  with  citizens  of  another  State,  to  prevent  judgment  against  the  defendant 
generally.     Mititurn  et  al  v.  Barber  et  al.  1  Day^s  Rep.  136. 

So  where  a  ereditor  had  recovered  judgment  on  a  contract  m7i<\e  \n  J^e-w  York , 
by  parties  there  residing,  from  which  the  debtor  had  obtained  a  discharge  undtr  the 
insolvent  law  of  that  State,  it  was  held  that  the  creditor  was  entitled  to  an  execu- 
tion against  the  body  and  estate  of  the  debtor.  Woodbridgc  v.  Wright,  3  Con.  Rep. 
523. 

In  J\'ew  York,  a  ilischarge  under  the  insolvent  law  of  another  State  is  no  bar  to  a 
suit  there,  by  a  citizen  of  that  State,  for  a  debt  contracted  within  it,  and  who  has  not 
in  any  degree  come  in  under  the  proceedings  under  that  insolvent  Act.  Van  Raugh 
V.  Van  Arsduln,  3  Caines'' Rep.  154.     Smith  v.  Smith,  2  .Tohns.  Rep.  235. 

A.  residing  in  Rhode  Island,  gave  his  note  dated  in  Massachusetts,  to  B.  resid- 
ing in  that  State,  and  afterwards  was  discharged  by  the  insolvent  law  of  Rhode 
Itland,  and  removed  to  JK'exv  York,  where  he  is  sued  on  the  note,  it  was  held  that 
the  discharge  was  no  bar  to  the  action.     Smith  v.  Smith,  2  Jshns.  Rep.  235. 

A  discharge  under  the  insolvent  Act  of  Connecticut,  by  which  the  person  of  the 


X04<  PUBLIC  WHITINGS, 

OhHp.  II.  s.  '2.  bliip  to  be  a  lawful  prize,  for  breach  of  neutrality,  being  enemies 
rioceedings  piopertv,  or  other  fact,  which  by  the  law  of  nations  is  cause  of 
C.iuris.  forfeiture;  the  sentence  is  complete  and  conclusive  evidence  ot 
the  fact  on  which  it  is  founded  against  all  the  world ;  and  if  they 


debtor  is  protected  from  arrest  and  imprisonment,  for  any  debt  mentioned  in  the 
petition ,  is  no  bar  to  a  suit,  brought  by  auc/i  a  creditor,  in  JVtw  York.  JVhite  v.  Can' 
Jield,  7  Johns.  Rep. 1X7. 

It  is  a  principle  of  general  practice  among  nations,  to  admit  and  give  effect  to  the 
tiile  of  tbieign  assignees  in  cases  of  bankruptcy  ;  but  the  mode  of  proceeding  to  re- 
cover the  debts,  depends  on  the  form  of  proceedings  in  the  country,  and  in  the  fa- 
mm  where  the  suit  is  instituted.    Bird  et  al.  v.  Caritat,  2  Johns.  Rep.  342. 

Where  a  creditor  and  his  debtor  reside  in  the  same  State,  and  the  debtor  is  there 
discharged  uiidtr  the  insolvent  law,  and  is  afterwards  arrested  at  the  suit  of  the  cre- 
ditors in  J\l^nu  York,  forilie  same  debt,  the  Supreme  Court  would  not  discharge  him 
on  common  bail.  Sicardv.  Whale,  II  Johns.  Rep.  194. 

A.  residing  at  ►Vtfw  Orleans,  drew  a  bill  of  exchange  in  favour  of  C.  an  inhabi- 
tant o?  Tennessee ,  on  B.  of  Pennsylvania,  which  was  protested  for  non  acceptance, 
due  notice  of  which  was  given  to  B.  at  JVew  Orleans,  who  afterwards  obtained  a 
discharge  of  all  his  debts  under  the  insolvent  law  of  that  State,  in  an  action  brought 
in  j\'ev>  York  by  C.  against  B.  it  was  held  that  B^s  discharge  was  a  Talid  defence. 
Hicks  V.  Brov>n,  V2  Johns.  Rep.  142. 

The  disciiarge  of  a  bankrupt  or  insolvent,  operates  according  to  thefex  locion  the 
contract,  where  it  was  made  or  is  to  be  executed,  ibid.  S.  P.  Smith  v.  Smth. 
2  Johns.  Rep.  235. 

A  person  who  had  been  arrested  in  another  State,  and  discharged  from  imprison- 
ment under  an  Act  of  the  Legislature  of  that  State,  may  be  arrested  and  held  to  bail 
for  the  same  cause  of  action,  at  the  suit  of  the  same  plaintiff.  Peck  v.  Hazier  et  al.  14 
Johns.  Rep.  346. 

In  J\'ew  Jersey  it  has  been  decided,  that  the  Act  of  Assembly  of  Pennsylvania, 
j)assed  13th  March,  1812, /or  the  relief  of  iniolvent  debtors  in  the  city  and  county  of 
Philadelphia,  is  a  bankrupt  law,  and  against  the  Constitution  of  the  U.  States,  and 
void.    Vamixem  et  al.  v.  Hazlehirsts,  1  South.  Rep.  192. 

Ifi  the  case  of  The  Farmers'  &  Mechanics'  Bank  v.  Smith,  3  Serg.  SJ  R.  Rep. 
63,  this  Act  of  Assembly  was  held  constitutional  ;  but  upon  a  writ  of  error  to  the 
Supreme  Court  of  the  IJ.  States,  the  judgment  was  reversed.    6  TVheat  Rep.  131. 

A  similar  decision  was  made  on  the  Act  of  3d  April,  1801,  of  JV'ew  York.  Ol- 
den exrs.  V.  Hallet,  2  South.  Rep.  466. 

Where  a  citizen  of  JVnu  Jersey  contracted  a  debt  in  Pennsyhiania,  and  was  sued 
in  J\''<--w  Jersey,  and  pending  the  suit  goes  to  Pennsyhtama,  and  was  arrested  there 
by  other  creditors,  and  then  discharged  under  the  insolvent  law  ot  that  State,  an 
exonerettir  was  ordered  on  the  bail  piece  in  the  suit  in  J\eiv  Jersey.  1  Halst.  Rep, 
148. 

In  Maryland,  a  defendant  was  discharged  from  a  ca.  sa.  upon  his  producing  his 
release  uniler  an  insolvent  law  ai  Pennsylvania.  M'Kim  v.  Marsliall,  1  Har.  & 
Johns.  Rep.  101. 

In  Pennsylva7iia,  a  discharge  under  an  insolvent  law  of  Maryland,  though  the 
Act  was  passed  subsequent  to  the  debt  in  question,  and  to  the  institution  of  the  suit, 
was  held  to  protect  the  person  of  the  debtor,  who  was  a  resident  of  .I/iirt/Zawf/. 
Miller  v.  Hall,  1  Ball.  Rep.  229.  ThomJjso7i  v.  Yowig,  ibid.  294.  Donaldson  v. 
Chambers,  2  Do.  100. 

The  rule  is  to  dischargeon  common  bail,  in  cases  where  the  debtor  was  discharged 
by  the  bankrupt  law  of  the  State  or  Territory  where  the  debt  was  contracted,  and 
where  he  resided,  unless  such  State  refuses  to  extend  the  same  courtesy  to  the  citi- 


NOT  RECORDS. 


105 


state  the  evidence  from  which  they  drew  the  conclusion,  no  Court  r,hap.  ii,  s.  2. 
in  this  country  can  take  into  their  consideration,  whether  such  .'''''?^''*^'!'"g8 
conclusion  was  right  or  otherwise(l)  (z)     Nor  will  the  sentence  Courts.  "^ 
be  void  on  account  of  the  Court  having  arrived  at  the  conclusion 


(l)Vi(le 
■ Pwrk's  Insur. 

zens  of  Pennsylvania,  and  it  will  lie  presumed  it  does,  unless  some  rtasDn  be  shewn  (;a,.,.|s  j,  Ken- 
to  the  coiitraiy.  Smitli  v.  Broivri,  .3  Binn.  Rep.  201.  sin^ion. 

This  curtesy  i-xists  hetween  Pennnylvania  and  Maryland.  HiUiard  et  r//.  v.  8T.  Rip.  230. 
Greenleaf,  2  Yeates'  Rep.  533.  S.  C  5  Binn.  Rep.  336.  n.  Bog^s  v.  Teacle,  ibid.  Christie  v.  Se- 
^nc)  ciei-.;,. 

"'''  8T.  Ren.  192. 

So  with  S.  Carolina.    Harev.  JlIoul(rie,2  Yeafes^  Rep.  iS5.  j^^jij       ' 

But  It  does  not  with  A'eiv  York      Fisher  v.  Hyde,  3  Yeales'  Rep.  -256. 

Nor  with  the  District  of  Columbia      Walsh  et  al.  v.  JVourse,  5  Binn.  Rep.  381. 

In  the  ease  oi  British  subjects,  the  discharge  iinder the  bankrupt  laws  oi  England 
will  protect  the  person  of  a  bankrupt  in  Pennsylvania.  Harris  v.  JVlandeville ,  2 
JJall.  Rep.  '256.  S.  C.  2  Yeates' Rep.  99. 

Where  the  debt  was  contracted  and  made  payable  out  of  the  State  in  which  the 
discbarge  took  place,  the  Circuit  Court  will  not  discharge  the  defendant  on  common 
bail.     Campbell  et  al.  v.  Claudius,  1  Peter'' s  Rep.  484. 

A  discharge  of  the /)e)"S07i  only,  under  a  foreign  insolvent  law,  will  not  entitle  the 
debtor  to  an  exoneretnr  in  the  Circuit  O'url,  aliter,  if  the  contract  be  discharged. 
Webster  v.  Massey.  C.  C.Apnl,  1808,  M.  S.  Rep. 

The  insolvent  laws  of  Pennsylvania  ave  considered  as  those  of  a  foreign  coimtry, 
in  this  respect,  ibid. 

Where  the  person  of  the  defendant  bad  been  discharged  under  the  insolvent  law 
of  Pennsylvania,  of  which  the  plainlifFhad  due  notice,  and  the  debt  was  cont'scted 
there,  the  Circuit  Court  discharged  him  on  common  bail,  but  would  not  quash  the 
capias.     Read  v.  Chapman,  1  Peter''s  Rep.  404. 

An  insolvent  debtor  who  has  been  discharged  in  JVdw  York,  and  assigned  among 
other  articles  a  horse  in  the  possession  of  a  citizen  of  Pennsylvania,  cannot  after- 
wards bring  trover  for  him.     Teetor  v.  Robinson,  7  Serg.  £J  R.  Rep.  182. 

The  bankrupt  law  of  a  foreign  country  is  incapable  of  operating  a  legal  transfer  of 
propei-tv  in  the  U.  States.  Harrison  v  Sterry,  5  Crunch's  Rep.  289.  M^J^'eil  v. 
Colquhonn,  2  Hayw.  Rep.  25.   Vide  Bizzel  v.  Bedient,  'iCarolina  Laiv Repos.  254. 

A  discharge  under  a  foreign  bankrupt  law,  is  no  bar  to  an  action,  in  the  Courts 
of  this  country,  on  a  contract  made  here.  M'Millan  v.  M'J^eil,  4  Wheat.  Rep. 
209.— Am.  Ed. 

(z)  If  the  sentence  of  a  foreign  Court  be  free  from  ambiguity,  so  as  not  to  require 
aid  from  any  other  part  of  tlie  record  to  explain  the  ground  on  wliicli  it  went,  no 
Other  part  of  the  record  can  be  read.  Marsh  v.  Un.  Ins.  Co.  C.  C.  April.  1810, 
M.  S.  Rep. 

But  the  record  may  be  referred  to,  for  the  purpose  of  shewing  that  no  claim  was 
put  ill,  or  that  it  was  untrue  and  fraudulent,  or  by  misconduct  of  the  captain,  or  to 
shew  what  papers  were  found  on  board  and  the  like.  ibid.  S.  P.  Assuria  et  al.  \. 
Ins.  Co.  Penn.  C.  C.  Oct.  1812,  Jf  S.  Rep. 

It  the  sentence  ofa  foreign  Court  shew  the  ground  of  condemnation,  no  other  part 
of  the  proceeding  need  be  produced.  Houquebies  v.  Girard,  C.  C.  Oct.  IH0^,M. 
S.  Rep. 

In  Marshall  v.  Parker,  2  Camp.  Rep.  69,  it  was  decided,  that  as  a  foundation 
for  introducing  the  sentence  in  evidence,  the  capture  mast  be  proved. 

In  an  action  of  trover  brought  by  the  original  owner  ofa  vessel  which  had  been 
abandoned,  and  a  wreck,  and  sold  according  to  the  laws  of  Spain,  in  cases  of  wreck 
P 


^06  PUBLIC  WRITINGS, 

Chap.  II.  s.  2.  on  rules  of  evidence,  or  presumptions  established  by  particular 
Pr'iceedings    ordinances,  and  not  generally  acknotvlcJged.iX)     In  this  case, 

in  roreign  '  ...  .  .  . 

Courts.  however,  the  adjudication  is  only  evidence  of  the  conclusion  on 

■  which  the  condemnation  is  founded,  such  as  the  property  belong- 

(1)  Bolton  r.  j,^rr  to  an  enemy,  or  the  like,  and  not  of  the  facts  stated  by  way 

Gladstone,  P      .  ,  '^  *'  J  J 

5  East,  i.'5.T.     or  evidence. 

2  Taunt.  85.      ^ 

BarinsrvRoy, 

Ex.  Ass.  Co.    or  derelict,  the  property  hy  the  sale  was  transf'-rred  to  the  purchaser,  who  thereby 
5  East,  99.       acquired  a  valid  title  against  all  the  world.     Grant  et  al.  v.  M'Lachlin,  i  Johns. 
Hep.  34. 

The  sentence  of  a  foreign  Court  of  Admi'ally,  is  not  conclusive  evidence  as  to  the 
character  of  the  property,  and  of  a  breach  of  warranty  of  neutrality.  Vandenhciivel 
V.  Un.  Ins.  Co.  in  Er.  rev.-rsiig  the  Judgment  of  the  Supreme  Court.  2  Johns. 
Cas.  i'fX.  S.C-  2  Cai7iPs'Cas.inEr.2l7.S.  P.  Johnsonetal.\.  Lndlo-w,\Caines^ 
Cas.  iuEr.  XXIX.  S.  C  2  Johns.  Cas.  481.  S.  P.  Laing  v.  Un.  Ins.  Co.  in  Er. 
ibid.  487.  Goix  v.  Low  in  Er.  ibid.  480.  Kcmble  et  al.  v.  RIdnelander  et  al.  3 
Johns.  Cas.  130.  RadcUfftt  al.  v.  Un.  Ins.  Co.  9  Jolms.  Rep.  277.  Contra  same 
cases  in  Suprenje  Court,  viz.  Goix  v.  Low.,  1  Johns.  Cas.  341.  Laing  v.  Un-  Ins. 
Co.  2  Do.  174.  Lndlow  et  al.  v.  Dale,  I  Johns.  Cus.  f6.  iS'.  C  2  Caines''  Cas.  in 
Er.  348.  S  P.  Ilaskin  v.  JVeiu  York  Ins.  Co.  and  Vandenheiivel  v.  Church,  2 
Johns.  Ca-^  173.  ?j.  Groning  v.  Un.  Ins.  Co.  1  JVoW  &  Al' Cord's  Rep.  537. 
Bailey  v.  So.  Car.  Ins.   Co.  ibid.  541.  n. 

The  decision  of  a  prize  Court  is  conclusive  as  to  the  property,  in  an  action  of 
trover.    Wheelwright  v.  Depeyster,  I  Johns.  Rep.  471. 

Sentence  of  condemnation  is /in'ma  ybc/e  evidence  of  blockade.  RadcUffs.  Un. 
Ins.  Co.  'J  Jolms.  Rep.  -277. 

In  an  action  on  a  policy  of  insurance,  a  sentence  of  conderonation  by  a  foreign 
'*  Court,  is  conclusive  evidence  of  those  cases  ot  condemnation  only  which  it  distinctly 

states.  Robinson  et  al.  \.  Jones,  8  JVlass.  Rep.  536. 

Nor  will  such  sentence  be  conclusive,  and  perhaps  not  even /)ri»jo_/acte  evidence 
of  the  existence  of  such  cause,  unless  it  appear  a  trial  was  had,  in  which  the  parties 
had  an  opportunity  to  be  heard.  Sawyer  et  al.  v.  The  JU.  Fire  &  JU,  Lis.  Co.  12 
JUass.  Rep.  291. 

And  it  the  (U  cree  be  reversed  by  the  Court  of  Appeals,  the  reversal  will  be  con- 
clusive evidence  that  the  fat  ts  stated  did  not  exist.  Cleveland  v.  The  Un.  Ins.  Co. 
8  Mass.  Rep.  308.  Dorr  v.  The  same,  ibid,  494. 

Thf  s.  iiience  of  a  Court  of  Prize  is  not  conclusive  to  establish  any  particular 
fact,  without  which  it  may  have  been  righly  pronounced.  JVIaleyy.  Shattuck,  3 
Crunch's  Rep.  487.  Vide  Fitzsimmons  v.  JVewp.  Ins.  Co.  4  Crunch's  Rep.  197. 
1  Rail's  Jim.  Law  Journ.  139. 

The  sentence  of  a  foreign  Com  t  of  Admiralty  condemning  a  vessel  for  a  breach 
of  blockade,  is  conclusive  of  (hat  fact  in  an  action  on  the  poUcy.  Croudson  v.  Leo- 
nard, 4  Cnnich's  Rep  434.  1  Hallos  Am.  Law.  Journ.  148.  Etvide  The  Maryland 
Ins.  Co.  v.  Woods,  6  Cranch's  Rep.  29. 

The  sentence  of  condemnation  of  a  foreign  Court  of  competent  jurisiliction,  can- 
not be  avoided  for  Iraud,  when  collaterally  called  in  question.  Stewart  v.  Warner 
et  al.  1  Day's  Rep.  142. 

The  sentence  of  a  foreign  Court  of  Admiralty,  condemning  property  as  prize,  is 
conclusive  evidence,  not  only  of  its  direct  effects,  but  also  as  to  the  facts  directly  de- 
cided by  it  Brown  v.  Ins.  Co.  Penn.  4  Yeates'  Rep  119.  iS.  C.  in  High  Court  of 
Error,  by  name  Dempsey  v.  Ins.  Co  Penn.  1  Binn.  Rep.  299.  n.  Per  Washing- 
ton J.  Croudson  v.  Leonard,  4  Cranch's  Rep.  434. 
After  the  decision  of  Dempsey  v.  Ins,  Co.  Penn.  the  Legislature  of  Pennsylvania, 


NOT  RECORDS. 


107 

Also,  if  a  foreign  Court  of  Admiralty  condemn  a  ship  as  law-  chap.  ii.  s.  2. 
ful  nrize   without  assigning  any   cause,   it  is  evidence  that  she  ^'7,*^'^'"''"°* 
was  not  neutral  ;(l)(a)  but  if  the  foreign  Court  state  the  facts  Courts. 


by  Act  of  29th  March,  1809,  5  S»i.  L.  49,  d.-clarert,  lh;.t  no  sentence  of  :t  Foreign  (/ Woidmass 
Prize  Cmrt  should  be  concJusiveof  any  ficts,  except  the  acts  md  doings  of  said  Court.  Pa,-k_  413^     * 

If  a  lor'  i}?"  Prize  Court  <<f  o-eueral  jurisdiction    has  <l  euleil  tl)at  a  seizure   was 
niarfe  conforriiabl*   with  their  Ihw,  its  ilecree  is  conclusive  upon  this  point.    Cheriot  v.  Saloucci  v. 
Fovssat,  3  Biiin.  Rep  220.    Et  vide  Baxtfr  et  al  v.  Tfw  ^Y.  fin?.  Mir.  Ins.  Co.  p'^'il'T.'r 
6  Mass.  Rep.  -277    ■S'.   C  7  Do.  275      Russell  v.  The  Uii.  Ins.  Co.  4  JDall.  Rep.  '        ' 

421 1    Bronon  »■.  The  Un.  Ins.   Co.  i  Day's  Rep.  179.    Mar.  Ins.  Co.  v.  Woods, 
6  C ranch' a  Rep.  45. 

But  the  jurisdiction  of  a  foreign  tribunal  may  he  inquired  into,  both  as  respects 
the  auihoritv  from  which  it  has  emanated,  and  the  subject  matter  over  which  it  Is 
exercised.  CherioC  v.  Foussat,  3  Binn    Rep.  220. 

Th'  sentence  of  a /'''6'?jc/i  Court  of  Admiraltij ,  condemning  an  ^/nerj'can  vessel 
and  cargo,  under  the  Jlfitoi  decree,  is  conclusive  upon  thi  Courts  of  this  country,  so 
as  to  change  the  properly,  although  the  decree  on  which  it  is  founded  is  repugnant 
to  the  law  of  nations,  and  although  those  C'^urts  do  not  acknowledge  the  concliisive 
efiFect  of  the  sentence  of  fdreign  prize  Courts.  Jirmroyd  et  al.  v.  TVilUams  et  al. 
C.  C.  Jlpril,  \%\\,M.  S.  Rep. 

The  condemnation  of  an  illegal  tribunal  is  not  binding  ;  and  if  the  source  of  the 
authority  under  which  it  was  consiitut'^d,  be  contrary  to  the  usual  mode  of  consti- 
tuting Courts,  he  who  wi.uld  support  the  seniencc,  must  prove  its  legitimacy.  Snell 
V.  Foussat,  C.  C.-Jlpril,  1805,  M.  S.Rep.  S.  C.  3  Binn.  Rep.  239,  n.  Cheriot 
V.  Foussat,  3  Binn.  Rep.  220.  But  a  foreign  Couit,  the  origin  of  which  does  not 
appear,  is  to  be  presumed  legitimate,  ibid. 

Where  a  libel  in  a  foreign  Court  of  Admiralty  set  forth  several  contradictory 
causes  of  condemnation,  and  the  decree  was  general,  and  did  not  specify  any  parti- 
cular cause  of  forfeiture,  it  was  held,  that  the  sentence  was  not  conclusivi  ,  an-l  that 
the  assured  might  prove  it  was  .American  property.  Vasse  v.  Ball,  2  Dull.  Rep. 
270.  S.  C.  'i  Yeates'  Rep.  178.  S.  P.  Crousillat  v.  Ball.  3  Yeates'  Rep.  375. 
Blacklock  v    Stewart,  2  Bail's  R-^p.  363. 

If  a  policy  of  insuiance  contain  a  warranty  of  American  property,  with  a  proviso 
that  if  called  in  question,  it  shall  be  sufficient  for  the  assured  to  prove  it  in  any  Court 
of  the  U.  5/a<es,  the  underwriter  may  combat  the  fact  bv  reading  the  proceedings 
of  a  foreign  Co  J  rt  of  Admiralty  as  evidence,  though  not  conclusive.  Galbreathv, 
Grade,  C.  C.  April,  1805,  M.  S.  Rep.  S.  C.  cited  1  Binn.  Rep.  296.  n.  Calhoun 
V.  Ins.  Co.  Penn.  I  Bi7m.  Rep.  293. 

Theju<!gment  of  a  foreign  Court  ofcompetentjurisdiction,l9/(rt»»a^CTe evidence 
of  the  points  adjudged.  Smith  v.  Williams,  2  Caines'  Cas.  in  Er.  110.  RadcUffs, 
U.  S.  Ins.  Co.  9  Johns   Rep.  277. 

Qnere  m  Virginia.  Hadfieldv.  Jameson,'2  Munf.  Repi  55.  Bourkes.  Grail' 
berry,  1  Gilmer's  Rep.  16.         • 

The  sentence  of  a  Court  of  Admiralty  is  only />nnjrtyaae  evidence  of  any  fact,  and 
will  have  no  effect  if  sufficient  appears  in  it  to  rebut  such  presumption.  Johnston  v. 
Ludlow,  2  Johns.  Cas.  481  S.  C.  1  Caines'  Cas.  in  Er.  XXIX.  S.  P.  Laingv. 
Un.  Ins.  Co.  2  Johns.  Cas.  487.— Am.  Ed. 

(a)  Vide  ante  Vasse  v.  Ball,  2  Ball.  Rep  270.     S.  C.  2  Yeates'  Rep.  173. 

When  it  does  not  appear,  by  the  decree  itself,  on  what  particular  ground  the  con- 
demnation was  had,  the  case  is  to  be  open  as  to  all  the  points  which  it  may  be  neces- 
sary for  the  parties  in  interest  to  establish,  except  the  fact  of  coademnation.  Robin-' 
son  et  al.  v.  Jones,  8  Mass.  Ret).  536.— Am.  En. 


IQQ  PUBLIC  WRITINGS, 

Chap.  II.  s.  2.  on  which  they  found  their  condemnation,  and  it  appear  from 
^Ford^n^*  those  facts,  and  also  from  the  conclusion  they  have  drawn,  that 
Courts.  the  condemnation  was  not  for  any  violation  of  the  law  of  na- 

tions,  but  for  not  complying  with  some  arbitrary  regulation  of 

their  own  ;  as  where  a  belligerent  State  having  made  certain  or- 
dinances which  had  not  been  assented  to  by  a  neutral  State,  seiz- 
ed a  ship  belonging  to  such   state,  and  declared  her  prize,  be- 
cause she  had  not  navigated  according  to  those  ordinances,  the 
sentence  is  void  altogether,  and  of  no  force  in  any  Court  of  Jus- 
(1)  Calvert  TJ.^ice.ri)  In  like  manner,  as  it  is  necessary  that  the  sw/yec/ should 
7T.litp.523.be  within  their  jurisdiction,  it  is  also  necessary  that  the  Court 
Mhyiie  V        itself  should  be  one  regularly  established,  and  acknowledged  by 

Walter,  Park.  p.  T  .•  •••. 

414.  the  law  01  nati'ons,  and  not  a  mere  arbitrary  institution;  where-; 

r"ii 'sT       ^^^^  ^  condemnation  before  the  Consul  of  a  belligerent  State,  re- 
Rep.  434.       sident  in  a  neutral  country,  was  considered  as  a  mere  nullity;(2) 
toir  ibiti.'TG'i  ^"^  ^^'^'^  ^  proceeding  before  the  Consul  of  one  belligerent  State 
resident  in  another,  in  alliance  offensive  and  defensive  with  it, 
l.  Rockwo^.(r  has  the  same  effect'  as  if  taken  in  the  State  appointing  the  Judge 
8T.Rep.268.  who  condemns  ;  for  the  interests  of  the  two  States  being  united, 
one  may  authorise  the  other  to  erect  a  Court,  acting  on  the  law 
of  nations,  for  their  common  benefit,  at  any  place  within  the  hos- 
g)  Odd}  iy.     tile  territory .(3)  (6) 

2  East,  473.  The  proof  of  these  proceedings  has  generally  been  by  copies 
under  the  seal  of  the  Court  in  which  they  were;(c)  there  seems  to 
be  no  objection  to  the  seal  of  a  Court  acting  on  the  law  of  na- 


(i)  The  Admiralty  Court  should  not  only  have  jurisdiction  of  the  subject  matter, 
but  should  be  constituted  in  conformity  wiiji  the  laws  of  nations,  and  if  dtficient  in 
either  of  these  qualifications,  the  sentence  of  sucii  Court  is  nut  conclusive,  and  its 
jui'isdiction  may  be  inquired  into  by  a  Court  in  another  country,  when  the  question 
is,  wliribt-r  the  right  of  property  has  been  changed.  Hose  v.  Himebj ,  ^Crunch.  Rep. 
241.  Sed  vid<-  Hudson  et  al.  v.  Gustier,  ibid.  293.  Wheeiright  v.  Depeyster,  1 
Johns.  Hep.  471.     Cheriot  v.  Foussat,  3  Binn.  Rep.  220. 

htCtieriot  v.  Foussat,  the  Court  likewise  deciiled  that  seizure  and  safe  possession 
are  al!  that  are  neeessa.y  to  give  jurisdiction,  and  wtieiher  that  possession  be  within 
the  dominions  ot  the  captor,  or  of  a  neutral,  is  immaterial. — Am.  Ed. 

(c)  A  paper,  purporting  to  be  a  decree  ol  a  toj-ei^  Court  of  Admiralty,  not  certi- 
fied uiidei  the  seal  ol  the  Court,  cannot  bu  read  to  the  jury  in  an  action  between  the 
assured  and  the  underwriter,  in  consequvnce  of  liaving  been  exhibited  by  the  former 
to  the  brokei  ol  the  latter  as  one  of  the  proofs  ot  loss.  Ills  only  evidence  of  the 
faci  of  such  communication  having  been  made.  Tlmmton  \ .  Murray,  3  Binn.  Rep, 
326. 

The  proceedings  of  a  Portuguese  Court,  certified  under  the  seal  of  one  who  states 
himself  ti:  be  the  Secretary  of  Foreign  Affairs  in  Fortugai,  are  not  evidence.  Church 
v.  Hubbart,  '2  Crunch.  Rep.  187. 

Bui  if  the  deer,  is  ol  the  Portuguese  colonies  be  trahsmiited  to  the  seat  of  go- 
vernment, and  registered  ia  the  department  of  slate,  a  certificate  of  that  tact  under 


NOT  RECORDS.  j^Qg 

tions,  being  received  as  evidence  of  itself;  but  in  my  first  edi-Chnp.  it.  s.  2, 
tion.  I  hazarded  an  opinion,  that  to  prove  the  seal  of  a  mere  muni-  P'o«<'e<J'"g3 

•  1  111-  i-  •  I         •    ■  '"  A'oreiga 

cipal  Court,  some  evidence  should  be  given  ot  its  authenticitj;(l) Courts, 
and  a  case   which  has   been  since  determined   in   the  Court  of  — — — 
King's  Bench  has  confirmed  that  opinion  ;  for  in  an  action  on  a(i)  Henry  t;. 
judgment  obtained  in  the  island  of  Grenada,  though  the  plain- 3 East  221. 
tiff  proved  the  hand-writing  of  the  Judge  of  the  Court  subscrib- 
ed to  the  judgment,  yet,  as  he  could  not  prove  the  seal  affixed 
to  be  the  seal  of  the  island,  he  was  considered  as  having  failed 
in  his  proof,  and  the  Court,  on  motion,  confirmed  the  nonsuit 
obtained  on  that  ground.  Nevertheless,  as  the  Court  did  not  go 
much  at  length  into  the  reason  for  requiring  such  evidence,  it 
may  not  be  improper  to  retain  the  note  which  was  inserted  in  the 
former  edition.(f?)  * 

the  great  seal,  with  a  copy  ot  the  decree  authenticated  in  the  same  manner,  would 
be  pritna  facie  evidence,  ibid. 

A  copy  of  proct-edings  of  a  foreign  tribunal,  produced  under  the  seal  at  arras  of 
the  Minister  of  the  kingdom,  is  not  even  prima  facie  evidence,  unless  it  appear  that 
the  Minister  has  the  official  custody  of  such  proceedings.  Van(le)~uoort  et  al.  v. 
Smith ,  2  Coines '  Rep.  155. 

A  paper  purporting  to  be  a  judicial  proceeding, authenticated  under  a  national  seal, 
will  be  taken  notice  of  judicially,  as  having  the  highest  evidence  of  authenticity, 
Gristuold  et  al.  v.  Pitcairn,  ICon.  Rep.  S5. 

The  copies  of  a  record  attested  by  the  Register  of  tlie  Court  in  a  foreign  country, 
are  not  admitted  as  evirlence,  without  a  certificate  of  the  Judge  that  he  is  the  Re- 
gister.    Spegail  V.  Perkins,  2  Roofs  Rep.  274. 

Where  the  plaintiff  produced  a  copy  of  the  Vice  Admiralty  records  of  lierrmula, 
and  proved  the  hand  writing  of  the  Judge  and  of  the  Register  of  the  Court  to  the 
certificate  that  these  papers  were  a  true  copy  from  the  records,  the  Court  admitted 
Ihem.  Mumford  v.  Boxune,  Anth.  K.  P.  Cas.  25. — Am.  Ed. 

{d)  Q2iere,  Whether  the  seal  of  a  Court  of  Admiralty,  is  not  of  itself  evidence 
Gardere  v.  The  Col.  Ins.  Co.  7  Johns.  Rep.  514.  In  Connecticut,  it  proves  itsell'. 
Thompson  v.  Utexvart,  3  Con.  Rep.  171. 

The  certificate  of  a  notary  public  under  his  notarial  seal,  h  prima  facie  evidence, 
that  the  person  who  uses  it,  is  a  Notai  v  coaimissioned  by  the  Governor.  Broivne 
V.  Phil.  Bank,  6  Serg.  &  R.  Rep.  484. 

Letters  of  administiation  under  the  seal  of  the  Court  of  Probates,  in  due  form  of 
law  will  be  deemed  regular  and  valid.  Westcott  et  al.  v.  Cady  et.al.  5  Johns.  Ch, 
Rep.  334. 

As  to  the  manner  of  proving  the  seal  of  a  foreign  government.  Vide  U.  Stales  v. 
Palmer,  3  fVheat.  Rep.  GiO.     The  Estrella,\  Do.  298.— Am.  Ed. 

•  It  was/(eW,  in  an  anonymous  case,  9  Mod.  66,  that  an  exemplification  of  the 
proceedings  of  a  Court  in  Holland,  under  the  seal  of  the  States,  was  sufficient  evi- 
dence without  further  proof;  but  this,  I,  conceive,  is  not  an  authority  to  shew  that 
the  seal  of  the  Court  in  that  country,  acting  on  its  own  laws,  would  have  been  suffi. 
cient;  and  the  case  of  Sxvinnerton  v.  Goddavd,  therein  cited,  seems  to  warran:  the 
distinction  ;  for  it  Wiis  there  held,  on  appeal  to  the  House  of  Lords,  that  an  exem- 
plific-.tio'i  of  a  judgrr.ent  of  the  Court  of  King's  Bench  in  England,  which  (tor  aught 
appearing  to  the  contrary,  was  imder  the  seal  of  that  Ci.mrt)  was  not  suflicient  evi- 


^IQ  PUBLIC  WRITINGS, 

Chap.  II.  s.  2.     It  was  before  observed,  that  if  a  man  be  acquitted  of  a  ciimc, 
Procewiings    ^j.  jisfharged  from  u  demand  in  a  foreign  country,  he  cannot  be 

of  Interiox"  "5  .  • 

Jurisdictions,  again  impleaded  on  the  same  account  in  th'P.     It  may  be  added, 

■  that  all  matters  of  contract  or  of  right  are  to  be  judgefj  of  ac- 

Vidt- Cleggr.  cording  to  the  law  of  the  country  wherein  they  arise;  in  such 

sCampb.  169.  cases,  therefore,  the  laws  of  foreign  countries  frequently  become 

Miller  V . 

Heinrick, 

4C:<inpb.  155.  dencf  of  ihe  judgment  before  the  Cous  t  of  Session  in  Scotland      It  is  true  that   the 
Buchanan         distinction  taken  by  the  Court  was,  th  t  in  the  one  case  the  record  was  the  direct 
1  C-  m  b  63    "*'*"'^'' '"  'ssuf^,  and  in  the  other  but  niducemetit.     But,  in  addition  to  this,  it  may  be 
Richadsoii       observed,  that  the  public  se.<l  of  one  State  is  matter  of  notoriety,  and  may  be  takea 
V.  Anderson,  notice  of  by  another,  as  part  of  the  law  nf  nations  acknowledged  by  all  ;  hm  when 
there  cited,     „„|,  jhe  seal  o( aforei£-nCourt  is  put  to  the  copy,  it  should  sfem  thai  some  evidence 
^"  J  '  "*  "  "'•  should  be  given  of  thai  seal  bt  ing  what  it  purports  to  be ;  for  the  Courts  of  Eiigland 
cannot  judicially   taki-  notice  of  the  laws  of  other  countiies ,-  and,  therefore,  where 
a  contract  is  to  be  construed  accordi'.g  to  the  laws  of  the  country  in   which   it   was 
roade,  witnesses  are  examined  to  prov-    what  those  laws  are.    1  P.  Will.  431.     A 
distinction  has  long  prevailed  between  public  and  private  seals;  tht    fi-st  (those  of 
the  supi  rior  Cou'ts  in  this  country)  are  considered,  as  is  observed  above,  as  part  of 
the  law  of  thr  country,  and  therefore  are  judicially  taken   ncitice  of  by  its  Ju;isies  ; 
but  the  seal  of  a  private  Court,  or  private  individual,  should  be  proved  by  evidence. 
Vide  Gild.  La-w  Ev.  20,    In  Moises  v.  ThoriUon,  8  T.  Rep  3U3,  it  was  /teWthat 
the  biU'e  production  of  an  instrument,  purporting  to  be  a  diploma  under  the  se^^l  of 
the    University  nf  aS^  ^/jrfrew's,  was  not  sufficient :  but   in  the  esse   of  Doe  dem. 
Woodmass  v.  JUason,  1  Esp.  Cos.  JV'.  P.  53,  tht  seal  of  the  Corporation  ot  London 
was  held  to  prove  itself.     From  what  is  said  by  the  Court  in  Muises  v.  Thornton, it 
may  be  collected  that  the  like  evidence  would  not  bt  sufficient  of  the  seals  ol  other 
£7if/2s/i  corpora: ions,  and  there  ap|)iars  goor)  .eHson  toi    making  a  distinction  be- 
tween them  and  that  of  the  Corporation  of  London;   its  privileges  have  been  con- 
firmed  by  Parliament,  and  its  seal  is  so  common  as  to  be  known  to  almost  every 
man. 

Letters  of  administration  under  the  seal  ot  the  Prerogative  Couit  of  Canterbury, 
prove  themselves  in  a  cause  respecting  personal  projieriy  .  Kempton  v.  Cross.  Cas. 
temp.  Hard.  108.  And  where  a  bill  of  exchangj  has  been  protested  ii.  a  to  eign 
country  for  noii-acceptance  or  non-payment,  the  protest  under  the  seal  of  a  notary 
public  has  been  usually  received  as  sufficient  evitlenc'-  of  th'  presentment,  without 
proof  even  of  the  protest  having  been  signed  by  him,  or  that  the  seal  affi.\ed  is  what 
it  purports  to  be.  Vide  2  Roll.  Rep.  346.  \OMod.  66.  This  seems  to  be  a  relaxa- 
tion of  the  strit  t  rules  of  evidence  tor  the  convenienc<  of  the  mercantile  world  ;  who 
in  such  cases,  give  credit  to  instruments  of  that  nature. ^ 

■j"  Notarial  writings  may  with  propriety  be  considered  as  public  tmi.tings  not 
judicial;  although  there  are  cases  in  which  they  receive  the  respect  and  efficacy  of 
such.  Vide  Church  v.  Hubbart,  2  Crunch's  Rep.  187.  Yeaton  v.  Fry.  5  Do.  335, 
But  a  notarial  certificate  is  generally  confined  to  bills  of  exchange,  &c. 

A  notarial  protest  is  evidence  of  notice  to  the  endorser  of  a  promissory  note,  and 
of  nou  payment  by  the  drawer.  Broivne  v  Philadelphia  Bank,  6  Serg.  ij  R-  Rep. 
484. 

The  protest  of  a  promissory  note  is  no  t-vitlence  by  itself,  th'  demand  and  notice 
must  be  proved  as  if  no  protest  had  been  made   Cumming  ^ .  Fisher,  Anth.  JV  P.  1. 

Qi/ere,  Whether  a  notarial  protest  be  conrlusivi  evide'ice  of  the  lawfulness  of 
money  tendered.  Searightv.Calbrait/i,iDal.Rep   325 

Qnere,  Whether  between  conteuding  parlies,  the  certificate  of  a  notary  public. 


NOT  RECORDS.  ^44 

the  subject  of  inquiry  in  our  Courts  of  Justice,  and  when  such  a  Chap.  ii.  s.  2. 
Question  arises,  the  foreign  law,  if  in  writing,  must  be  proved  by  ^'"?'^''^*^'"g' 

i  ,  *^   ot  Inferior 

a  copy  properly  authenticated.     But  when  the  unwritten  laws  of  Junsdiciions. 

a  foreign  country  become  the  subject  of  inquiry,  such  laws  are — — 

proved  by  the  parol  examination  of  witnesses  of  competent  skill 
and  knowledge.(e) 

that  he  is  "  duly  commissinned  and  sworn,"  can  be  contradicted.  Femmck  v.  Sears's 
adtn.  I  Crunches  Rep.  i259.  Vidt  Spegail  v.  Perkins,  2  Boot's  Rep.  274. 

The  certificate  of  a  notary  public,  that  a  reieast-  was  ackn^twledged  by  a  party  to 
be  his  act  and  deed,  ought  not  to  he  received  in  evidence  ;  but  the  deposition  of  the 
notary  public,  or  some  equivalent  testimony  ought  to  be  produced.  JSdd's  adin.  v. 
Alexander's  adm.  1  Randolph's  Rep.  456. 

In  Garvey  v.  Hibbert,  1  Jacob  &  Walk.  180,  money  was  ordered  to  be  paid  un- 
der a  power  of  attorney,  executed  in  J\''orth  America,  attested  by  a  notary  public, 
and  vr-rified  by  the  Secretary  of  State  of  the  country. 

The  notarial  co|)y  of  an  agreement  registered  in  Philadelphia,  respecting  the 
loading  of  a  vessel  insured,  the  original  being  in  the  hands  of  the  agent  of  the  plain- 
tiff .abroad,  is  HOT  evid'  lice  in  an  action  against  the  underwriters,  not  being  parties  or 
privies  thereto.  Donath  et  al.  v.  Ins.  Co.  North  America,  4  Yeates'  Rep.  275, 

Notarial  copies  of  insii'uments  executed  in  a  foreign  country,  are  not  in  them- 
selves evidence.  Mauri  v.  Heffernan,  13  Johns.  Rep.  58. 

The  esemplificntiiJii  of  a  decretal  order  of  the  Court  of  Chancery,  is  not  admis- 
sible evidt-ncf  on  a  trial  in  a  Court  of  Law,  but  the  original  decree  must  be  pro- 
duced.   Wilson  et  al.  v.  Conine,  2  Johns.  Rep.  280. 

Where  a  bill  of  exch-inge  is  lost,  on  proof  of  that  fact,  a  notarial  copy  may  be 
given  in  evidence.  Anderson  v.  Robeson,  2  Bay's  Rep.  495, — Am.  Ed. 

(e)  Where  the  great  seal  of  a  State  is  affixed  to  the  exemplification  of  the  Act  of 
the  Legislature,  the  attestation  of  a  public  officer  is  not  required  under  ths  Act  of 
1790      U.  States  v.  Johns,  4  Dall.  Rep.  413. 

A  piinteii  pamphlet,  containing  Legislative  Acts,  not  authenticated  by  the  seal  of 
the  State,  is  not  evidence  in  any  oth.  r  State,  under  the  Act  of  Congress.  Craig  v. 
£rown,  I  Peteis'  Rep.  352. 

Bui  a  copy  of  an  Act  of  Assembly  of  .snother  State,  contained  with  other  Acts  in 
a  pa'  phlet,  print,  d  by  the  printers  <<(  the  Commonwealth,  was  hf-ld  to  be  goed  evi- 
dence. Thompso?i  V.  Alusser,  1  Dall.  Rep.  462,  S.  P.  Biddis  v.  James,  6  £inn. 
Rep.  321.     Contra,  Commonwialtli  v.  Frazier,  cit'd,  ibid.  323. 

Copies  of  the  laws  of  Pennsylvania,  printed  under  the  authority  of  the  Legisla- 
ture, art-  evidence  in  this  State,  wiielher  the  laws  be  public  or  private.  Jiiddis  v, 
James,  ibid. 

The  written  or  Statute  laws  of  foreign  countries  must  be  proved  by  the  lawsthem- 
selvfS,  if  they  tan  be  procured  :  it  not,  inferior  evidence  may  be  received.  Unwrit- 
ten laws  or  usages  may  be  proved  by  parol  evidence,  and  when  proved,  it  is  for  the 
Court  to  construe  them,  and  decide  upon  their  effict.  Conseqita  v.  Willing  etal. 
1  Peter's  Rep.  225.  Seton  v.  Del.  Ins.  Co.  C.  C.  April,  1808,  M.  S.  Rep.  Ro- 
binson v.  Clifford,  ibid.  1807 

How  a  manuscript  copy  of  an  Act  of  Assembly  must  be  authenticated.  Uaviston 
V.  Cole,  1  Randolph's  Rep.  461. 

The  common  law  ot  a  foreign  country  may  be  proved  by  respectable  witnesses; 
but  for.ign  Statutes  cannot  be  provrd  bv  parol.  K<'nny  v.  Clarkson  et  al.  1  Johns. 
Rep.  385.  Vide  Smith  v.  Elder,  3  Do.  105.  Woodbridge  v.  Austin,  2  Tyl.  Rep. 
367. 


1 1  g  PU BLIC  WRITINGS, 

Chap.  II.  s.  2.  Judgments  in  a  Court  baton.  County  Court,  ov  o\.\iqv  inferior 
ofinrel-io""^  ^ourt,  tliougli  not  records,  are  also  evidence.  In  cases,  however. 
Jurisdictions,  where  it  has  been  requisite  to  prove  their  proceedings,  the  ge- 

— neral  practice  has  been  to  produce  the  book  containing  the  ori- 

VuleConi.  ginal  minutes,  as  well  those  previous  to  the  judgment,  as  the 
(C.j  1.  judgment  itself,  (for  in  the  case  of  all  inferior  jurisdictions,  whe- 

ther ecclesiastical  or  civil,  it  must  be  shewn  that  the  proceed- 
ings are  regular  ;)  and  as  it  is  not  usual  to  draw  up  such  judg- 
ments in  form,  this  evidence  has  been  held  sufficient  to  support 
(t) Chandler  an  action  on  the  judgment  of  the  County  Couit,(l)  or  to  prove 
Excht'q'^Trin.  ^'^^  proceedings  in  a  foreign  attachment  in  the  Court  of  the  Lord 
39  Geo.  3.      Mayor  of  London^Q)  or  a  discontinuance(3)  of  a  suit  in  the  She- 
(2)Fishert).  riflf's  Court  there  :  but  in   this  case  the  defendant  is  not  pre- 
Lane,2Black.  eluded  by  the  judgment  from  disputing  the  original  jurisdiction 
of  the  Court,  and  pleading  that  the  cause  of  action  arose  out  of 
g\vhue?''    thatjurisdiction,(4)(/) 

14  East.  216.    

(4)  Vide  ^"i'  unless  positively  shewn  to  be  in  writing,  they  may.  Livingstony.  J\Iaryl .  Ins . 

Herbert  v.       Co.  6  Cranch's  Rep.  280. 

Cooke, "W  illes  Copies  of  the  proceedings  or  df  crees  of  foreign  tribanals,  though  under  the  hands 
''  '  ^   '     and  seals  of  the  officers  of  such  Courts,  must  be  proved  like  other  writings.     Dela- 

field  V.  Hand,  3  Johns.  Rep.  310.  But  those  of  a  foreign  prize  Court  are  evidence 
when  under  its  seal  certified  by  a  deputy  registrar,  whose  official  character  is  certi- 
fied by  the  Judge,  and  his  by  a  notary  public;  it  being  a  Court  of  the  law  of  na- 
tions.    Yeaton  v.  Fri.,  5  Crajich's  Rep.  343. 

To  prove  a  condemnation  in  a  foreign  prize  Court,  it  is  only  necessary  toproduee 
ihe  libel  and  the  sentence.  JMai-yl.  Ins.  Co.  v.  Hodgson.  6  Craiich's  Rep.  220.  But 
the  depositions  read  by  the  plaintiff  in  a  suit  on  a  policy  of  insurance,  merely  to 
prove  the  condemnation,  are  not  evidence  to  prove  any  other  fact.  ibid. 

The  decree  alone  has  been  AeW  sufficient  to  prove  condemnation,  if  it  state  the 
material  facts.  Gardere  v.  The  Col.  Ins.  Co.  7  Johns.  Rep.  519.  Et  vide  Jones  v. 
Randall,  1  Cow/;.  Rep.  17. 

To  er.iitlf  foreign  letters  iestamentary,  to  be  read  in  evidence,  the  seal  affixed 
to  the  probate  must  be  proved.  Divckeirn  v.  Myers,  Dist.  Ct.  Fliil.  1819.  .T/.  iS. 
The  rxemplificHtion  of  a  will  made  \n  England,  and  certified  generally  to  have 
been  proved  in  the  Prerogative  Court  of  Canterbury,  under  the  seal  of  that  Court, 
may  be  read  in  evidence.  Z#s.  ofWestons  v.  Stammers,  1  Dull.  Rep.  2.  And  the 
probate  of  a  will,  under  the  seal  of  that  Court,  not  recorded  here,  allowed  to  be  read 
to  prove  title  to  lands.    JMorris''  les.  v.  Vanderen,  1  Dad.  Rep.  66. 

JMariiie  Ordinance;,  of  foi-oign  countries  promulgated  by  the  Executive  by  order 
of  the  President  of  the  U.  State",  may  be  read  in  the  Courts  of  the  U.  States, 
without  further  proof.     Ta'bot  v.  Seaman,  1  Cranch''s  Rep.  1. 

But  the  munici[>al  laws  ol  foreign  countries  are  generally  to  he  proved  as  facts. 
ibid.    Church  v.  Hubbard,  2  Do.  23".    Frith  v.  Sprague,  adx.  14  Muss.  Rep.  455 . 
-Am.  Ed. 

(/}  In  order  that  a  judgment  shall  have  any  binding  effect,  it  is  essential  that  the 
Cour'  have  jurisdiction  of  the  person  and  subject  matter,  the  want  of  which  makes 
th<- judgment  utterly  void  and  of  no  effect  Borden  v.  Fitch,  15  Johns.  Rep.  121. 
Et  vide  Gelston  v.  Hoyt,  3  Wheat.  Rep,  246.  Vide  Armstrong  v.  Carson's  exrs. 
2  Ball.  Rep.  302. 


NOT  RECORDS. 


113 


If  tlie  parties  think  proper  to  submit  their  differences  to  an  ar-chap.  ii  s.  2, 
bitrator,  his  judgment  is  as  conclusive  upon  them,  as   fhat  of  a     ■^"'■»<'s. 
Court  established  by  the  law;  and  though  in  questions  respect-  ' 
ing  land,    he  cannot  absolutely    convey  property  fnm  one  to 
another,  but  can  only  order  it  to  be  done  ;  yet  if  he  determine 
the  right  to  be  in  one,   this  is  conclusive  evidence  of  the  title, 
and  cannot  be  disputed  in  an  action  of  eiectment.(l)  (f)     The*.')  I^o*^ ''p"*- 

^                                                     *'                     \    /  Vfty  Morris  7>.  Ro- 

— — ■ per,  3  East, 

15. 

The  certificate  of  &  Justice  of  the  peace  was  lu'UI  to  be /;?tma/««>  evidence,  and 

?iot  being  questioned,  was  sufficii  nt  to  siijiport  »  judp^ment  on  it  in  debt.  Kellogg  v. 
J[Tauncey,  -2  Johns.  Rep.  376.  But  in  the  cnse  of  jli'  Carty  et  al.  v.  Shei-man,  ;» 
Do.  429,  was  held  not  to  bf  snfficli-nt  on  a  plea  nf7inl  tiel  record,  even  wher-^  the 
justices'  hand-wriling  was  proved  by  a  witness;  but  it  should  be  proved  by  the  justice 
liiniself,  or  a  sworn  copy  otliis  minutes  be  produced. 

The  sentence  of  a  Court  Martial,  which  has  no  jurisdiction  over  the  case,  is  not 
conclusive  evidence  in  an  action  brought  in  nnnther  Court.  fJifi  v  Withers,  3 
Crunch's  liep.  331.     Vide  Ferguson  v.  Barron,  2  Dull.  liep.  113. 

The  decisions  of  the  board  of  property  in  Pen7isylvania,avp  received  as  evidence, 
but  have  never  been  supposed  to  be  conclusive,  either  as  to  the  law  or  fact.  Caro- 
thers  et  al.  v.  Zes  of  niinmns's,3  Serg.  &  R.  Rep.  379.  In  Maryland,  vidr  West 
V.  Jarrett,  1  Ear.  &  Johns.  Rep   538. 

A  final  account  settled  hy  the  administrator  with  the  Orphans'  Court,  is  not  con- 
clusive evidence  in  his  favour.  Upon  an  issue  (\i  devastavit  vel  non  in  an  action,  by 
a  creditor,  it  being;  ?'es  inter  alios  acta.  Beattyy.  State  of  JMaryland,  7  Cra7ich's 
Rep.  2»l.— Aw:  En. 

{g)  In  Massachusetts  there  are  two  modes  of  submission  to  arbitration ,  besides  those 
authoris'  d  bv  (he  common  law  ;  the  one,  by  entering  a  rule  for  that  purpose  before 
a  justice  of  the  peace  ;  the  other,  by  a  reference  of  an  action  in  Court,  which  may 
comprehend  all  othiM-  demands  than  those  for  which  the  suit  is  brought.  Common- 
wealthy.  The  Pejepscnt  Proprietors,  7  .Mast   Rep.  399. 

In  a  submission  und(  r  the  Sfattitc  of  1786,  c.  21,  the  Statute  must  be  strictly 
pursued.  Monosiet  v.  Post  el  al.  i  Mns".  Rep.  532.  Jones  v.  Iluck-er,5  Bo  264. 
Mott  V.  Jliithony,  ibid.  489.  Short  v.  Pratt  et  al.  6  Do.  490.  Boardman  v.  Eng' 
land,  ibid.  70. 

A  submission  of  an  action  to  refere'-s,  by  a  rule  of  Court,  operates  as  a  waiver 
of  all  exceptions  to  the  forms  ofproce-s.     Forcftte  v.  Shaw,  10  Mass.  Rep.  253. 

So  in  Virginia.     Ligon  v.  Ford,  5  Munf.  Rep.  10. 

Where  an  action  is  submitted  tn  teferet  s,  uii''  r  a  >  ulf  of  C'^ur',  neither  p:irty  can 
at  his  plea8nre  rescind  the  r'de,  anil  revoke  the  submission,  nor  can  the  Tiai-.tifTdis- 
conimue,  or  become  nonsuit,  without  detVndnnt's  consent.  Haskell  v.  Wuitney,  12 
Mass.  Rep  47. 

In  Verma  n^  *her  a  submission,  either  party  mav  revoke  the  same,  and  an  award 
afterwards  will  not  be  held  valid.     H^jthaway  v    Si'ong,  2  Tyl.  Rep  105. 

Where  the  submission  ii«  .n  ;i  bond,  wh^t'ier  revncabl  or  not,  either  party  may 
revoke  it,  before  the  .iwairl  be  made  and  pi;blish'd,  and  leavt-  the  injured  pMit\  to 
his  remedy  on  the  bond.  Aspinivall  v.  Toiisey,  ibid.  329.  Allen  v.  Watson,  16 
Jolms    Rep   905. 

Vi'Js  the  opinion  of  Story  J.  on  the  effect  of  awards  in  Jf/pw  v.  Catara.  2  Ga^l. 
Rep   '"\. 

In   •..'onnecticut  a  submission  to  referees  by  rule  of  ■  'ourt,  m'^y  hf  revoked  by  ei= 
ther  >il  'he  parties.  Bollon  v.  JIalsey,  1  Root's  Rep.  221. 
And  where  by  the  submission  the  award  must  be  made  to  the  next  Court,  and  the 

Q 


Ill 


PUBLIC  WRITINGS, 


Chap.  II.  s.  2.  award,  whether  made  on  a  parol,  or  a  written  submission,  may 
Awixrds.     be  given  in  evidence  on  a  count  in  assumpsit,  founded  on  the 

Court  adjourns  with  tlie  cause,  the  power  oC  the  referees  expires,  ibid.    Vide  Ball 
V.  Halt,  3  Coil.  Rep.  308. 

A  bond  with  a  condition,  containing  a  submission  to  an  award  ot"  arbitrators,  ne- 
cessHi  ily  implies  that  the  obligor  will  perlonn  the  award.  Bundy  v.  Supin,  1  Root 
Rep  411. 

An  award  by  rule  of  Court  will  not  be  sot  aside,  unless  corruption  be  shewn  in  the 
arbnraiois.  Lezvis  v.  Wildman,  1  Day''s  Rep.  153.  Vide  Bulkley  v.  Starr,  2  Do 
533  ^llle7i  V.  Ranney,  1  Con.  Rep.  5C9.  Farker  v.  Avery,  Kirb.  Rep.  335.  So 
in  Maryland,  Goldsmith's  adinrs.  v.  Tilly,  1  Bur.  &  Johns.  Rep.  361. 

So,  in  ail  action  in  a  Justice's  Court,  the  parties  must  be  before  the  Court  before 
the  case  can  be  referred.  Bxirroughs  v.  Gemmg,  ibid.  103.  S.  P.  Prosser  v. 
Richards,  ibid.  377. 

Unliss  two  of  the  three  referees  are  to  make  report,  it  must  be  signed  by  all  of 
them.  Reeves  v.  Goff,  Penning.  Rep.  143.  Sed  contra  in  J\^e-w  York,  vide  Battey 
V.  Button,  13  Johns   Rep.  187.   Jtlnroy  v.  Benedict,  11  Do.  402, 

If  the  submission  is  not  stricll\  pursu.  d  by  the  Clerk  of  the  Court  in  making  out 
the  rule,  the  award  will  not  be  held  valid.  Tetter  v.  Rapesnyder,  iDall.  Rep.  223, 

There  are  four  species  of  awanis  in  Pennsylvania — 1st.  Those  made  by  mutual 
consent  in  pursuance  of  arbitration  bonds  entered  into  out  of  Court. 

2d.  Those  made  in  a  cause  depending  in  Court,  upon  consent  of  the  parties, 
(which  are  awards  at  common  law.) 

3dly.  Bonds  of  arbitration  under  llie  9  &  10  TV.  3  c.  15. 

4thly.  Those  made  in  pursuance  of  the  Act  of  Assembly  of  1705,  (1  Sm  L.  50.) 
Per  M'Kean  C.  J.  Williams  v.  Craig,  1  Dall.  Rep.  314.  Berman  v.  Freeman, 
8  Serg.  &  R.  Rep.  9. 

To  the  above  modes  may  be  added  5thly.  Awards  under  the  Act  of  21st  .1/arcA, 
1 806,  (4  .S??J.  L.   326  ;)  and   6thly.  Awards  under  the  Act  of  20th  March,  1810, 
^  (5  Sm.  L.  131,)  which  aulhorists  either  party  to  enter  a  rule  of  reference,  and  re- 

gulates the  proceedings  upon  such  arblii-ation. 

It  seems  the  Legislature  had  in  view  under  this  Act  only  those  cases  in  which  tlie 
judgment  is  for  a  specific  thing  or  sum  of  money.  Jones  v.  Stratton,  4  Serg.  SJ  R. 
Rep.  76. 

It  has  been  the  constant  usage  to  refer  actions  of  ejectment,  under  the  Act  of 
1705.  Austony.  Snow's  les.  2  Dall.  Rep.  157.  S.  C.  1  Yeates' Rep.  156.  S.  P. 
Diier  V.  Boydet  at.  1  Serg  &  R.  Rep.  203. 

It  is  too  late  to  annul  a  rule  of  rel'-rence,  when  the  transaction  has  been  investi- 
gated by  the  referees,  and  a  report  is  agreed  upon  by  them,  unless  there  has  been 
miscimduct,  or  precipitancy,  or  a  refusal  to  hear  the  testimony  offered  by  either 
party.  M'Kean  C.J.  Oxleyet  at.  v.  Olden,  1  Dull.  Rep.  430. 

A  rule  of  reference  shall  no!  be  struck  off  aft«  r  there  has  been  a  partial  hearing  of 
the  case,  notwithstanding  that  since  the  meeting  of  the  referees,  one  of  the  parties  is 
dead,  and  his  representatives  substituted.     Rnston  v.  Duniooody,  1  Binn.  Rep.  42. 

Alter  an  agreement  to  refer,  a  hearing  before  the  reterees,  and  an  opinion  in- 
timated of  the  merits,  the  iJaintifT  cannot  discontinue,  withoutleave  of  Court,  which 
■would  only  be  granted  upon  very  cogent  reasons.  Pollock  v.  Hcdl,  4  Dall.  Rep. 
222.  S.  C.  3  Yeates'  Rep.  42.     Ruston  v.  Dimwoody,  1  Binn.  Rep.  42. 

Th^■rJiscf■ve^^  of  material  evidence,  whicli  by  using  due  diligence,  the  party  might 
have  discovred  before,  is  not  ;<  sufficient  reason  to  induce  the  Court  to  set  aside  an 
award    Aubel  v   Eder,  2  Binn.  Rep.  582   n. 

U.h  s^  1  •  xti-.>orlinaiy  cas.s  the  Court  will  not  examine  matters  of  fact,  decided 
by  referees ;  but  when  the  point  turns  on  the  construction  of  a  writing,  or  if  the 


een  v. 


NOT  RECORDS.  .  .  ^ 

115 

original  consideration.Cl)  or  on  an  account  stated.(2)  But  to  ena-Chap.  ii  s.  2. 
ble  the  party  in  whose  favour  the  award  was  made  to  avail  him-      Awi,r(is. 

— — — — (I)  KiiiiTston 

V.   I'llilps, 

principles  on  which  the  award  is  fonmli  d,  are  contrary  to  law,  the  Court  will  cor- Peak  N.  P. 
rcct  the  error.  Large  v.  Passmore,  5  Serg.  &  R.  Rep.  51.  Cases,  227. 

An  award  may  be  committed  lo  the   referees,  without  consent  of  the  parlies,  for^,,,  „ 
the  purpose  of  con  ecting  an  informality.    Snyder'sles.  v.  Hoffman,  1  Binn.  Rep,  Batshc.^ 
43.  Echarts  ads.  \.  The  exs.  of  Vanderen,  cited,   1  Bimi.  Rep   45.    Thompson  v.  I  Esp.  IQi 
Warder;  4  Yeates'  Rep.  336.     Shaw  v.  Pearce,  4  Binn.  Rep.  485. 

A  report  may  be  recommitted  lor  the  pnrpose  of  conecting  an  informality, 
though  after  judgm*  nt  nisi,  and  exceptions  filed,  and  against  the  consent  of  the  ad- 
verse party.   Thompson  v.  Warder,  4  Veutes''  Rep.  336. 

But  where   there  has  been  a  material  error  on  the   part  of  the  referees,   in  the 
manner  of  conducting  the  business,  the  consent  of  both  parties  is  essential  to  induce 
the  Court  to  send  it  back.  Shaiu  v.  Pearce,  4  Binn.  Rep.  485. 
Quere,  If  the  referees  requested  it.  ibid. 

If  by  an  agreement  in  writing,  to  refer  under  the  Act  of  1705,  it  be  stiipulated 
that  the  award  shall  be  under  the  hands  and  seals  of  the  arbitrators,  an  award  un- 
der their  hands  without  their  seals,  is  bad.  Reav.  Gibbons,?  Serg.  SJ  R.  Rep. 
204. 

An  award  made  by  arbitrators,  terminates  the  period  of  their  power  to  act.  Fitz- 
gerald V.  Fitzgerald,  Hard.  Rep.  111. 

An  award  cannot  be  made  of  other  matters  beside  those  contained  in  the  submis- 
sion. Sessions  v.  Barfield,  2  Bay^s  Rep.  94. 

AVhen  the  award  is  void  for  uncertainty.  Jackson  ex.  d.  Stanton  v.  De  Long, 
9  Johns.  Rep.  43. 


THE  SUBJECT  OF  THE  REFERENCE. 

A  parent  may  submit  to  reference  a  trespass  on  his  minor  child,  and  the  award 
will  be  good,  although  the  damages  be  blended  with  other  damages  belonging 
wholly  to  the  parent.  Beebe  v.  Trafford,  Kirb.  Rep.  215. 

The  guardian  of  an  infant  may  submit  to  arbitrators  on  behalf  of  his  ward,  and 
performance  will  be  a  bar  to  a  suit  by  the  infant  when  of  age.  Weed  v.  Ellis,  3 
Caines'  Rep.  254. 

Wbere  the  submission  is  of  all  demands,  which  either  party  had  against  the  other, 
the  award  is  a  conclusive  bar  to  a  suit  for  any  demand  existing  at  the  time  of  the 
submission  and  award.   Wheeler  v.  Van  Houten,  12  Johns.  Rep.  311. 

A  reference  of  a  cause  will  not  be  granted  if  it  appears  that  questions  of  law  will 
arise.  DeHart  y.Covenhoven,  2.Tohns.C(is.  402  Lotu  v.  Hailet,  'iCaines^  Rep.  82. 
S.C.  Cole.  &C.  Cas.  of  Pract  433.  Codwise  et  al.  v.  Hacker,  ibid.  401 .  Et  vide 
Bedleetux.  v.  Willett,  ibid.  148.  Lusher  v.  Walton,  ibid.  206.  S.  C.  1  Cnines' 
Rep.  150.  Williams  v.  Green,  ibid.  470.  Adams  v.  Bayles,  2  Johns.  Rep  37i. 
Salsbury  v.  Scott,  6  Do.  3-.J9. 

Arbitrators  cannot  award  costs  where  the  law  says  they  shall  not  give  them. 
Lewis  v.  Engla7id,\  Binn.  Rfp.  5.  Linderbergc-  v.  Unruh,  I  Browne's  Rep.  194. 

In  an  action  of  trover,  an  award  to  rcsiore  specific  articles,  is  not  valid.  Buckley 
V.  Dnrant,  1  Ball.  Rep.  129. 

Where  misrecitil  in  th>  arbitration  bond  does  not  vitiate  it.  Vide  Diblee  v.  Best 
etal.  11  Johns   Rep.  103. 

An  award  of  arbitrators  appointed  by  the  agreement  of  the  parties^  pending  a  con- 


HQ  PUBLIC  WRITINGS, 

ChMp.  U.S.  2.  self  of  it,  he  must  not  only  |)rove  the  award,  but  iu  the  case  of 
Aw. Mis.     ^  parol   submission  pro ve, his  own  as  well  as  the  other  party's 

trovcrsv  in  Chancery  bf  twcen  them  as  co-parceners,  is  valid.     Fletcher  v.  PoUarJ. 
2  //.  &  Mvnf.  Rep.  544.     Et  vide  Brickhonse  v.  Hunter  ct  al.  4  Bo.  3G3. 

Under  a  general  submission  of  all  ilemantlsand  controversies,  the  arbitrators  may 
award  as  lo  rial  propi^riy.  Sellick  ct  ul.  v.  Addams,  15  Johns.  Hep.  197.  ^^luriroe 
V.  Allaire,  2  Caines'  Jiep.  320. 

THE  PROCEEDINGS  OF  THE  ARBITRATORS. 

Both  parties  must  have  an  oijportunity  of  being  heard,  and  that  in  the  pres?ivf 
of  each  other  ;  the  parties  must  have  h  reasonable  time  to  bring  forward  their  wi; 
nesses,and  ihey  must  give  ihcir  teslimoiiy  in  the  presence  of  the  parlies.  Ilolling; 
worth  V.  Leiper,  1  Dull.  Hep.  161. 

A  report  ot  referees  was  set  aside,  because  they  had  ordered  (he  parties  to  with 
draw,  and  they  examined  the  witnesses  out  of  their  hearing.  Hodgsony.  JMusgrove ^ 
1  Ball.  Rep.  83. 

Referees  may  inquire  abroad  into  the  price  of  work,  or  the  truth  of  any  matter 
ofa  public  nature.  Chaplin  v.  Kirivan,  1  BcM.  Rt-p.  187.  Vide  Passmore  v.  Pet- 
tit  et  al.   i  Do   271. 

To  entitle  a  party  to  demand  of  referees  further  time  to  procure  testimony,  he 
must  shew  why  he  has  not  be  n  able  to  produce  it.  Latimer  et  al.  v.  Ridge,  1  Binn. 
'  Rep.  458.   Et  vide  Falconer  v.  JMontgomei^  et  al.  4  Ball.  Rep.  232.  Passmore  v. 

Pettitet  ul  ibid.  271. 

If  referees  unreasonably  refuse  an  adjournment,  the  report  will  be  set  aside, 
Forben  v.  Frary  et  al.  2  Johnn    Cas.  224. 

The  Court  Will  noi  give  refer.-es  ii\si  ructions  on  a  point  of  law,  though  they  ap- 
ply for  them.     Geyei'  v.  Smith,  1  Ball.  Rep.  347. 

Uiider  th'  Act  of  1705,  they  ca,in')t  fi'  I  the  facts  and  refer  the  law  to  the  Court. 
Sutton  \.  Horn,  7  Serg  &  R.  Rep.  228. 

W  liere  the  Tf  port  is  merely  infornial,  the  Court  may  send  it  back  to  the  referees 
to  be  corrected  Snyder  v.  Hoffman,  1  Binn.  Rep.  43.  Et  vide  Les.  of  Lattimorc 
V.  Martin,  Addis.  Rep.  11. 

And  when  i-eturned,  the  parties  may  be  heard  before  them.  Bowers  et  al.  \. 
Worrall,  1  Browne''s  Rep.  212. 

Referees  ai-e  the  only  proper  source  of  information  to  the  Court,  of  the  evideace 
they  have  received,  and  of  the  impressions  made  on  their  minds  during  the  hearing 
of  the  case.     Howard  \.  Salter,  1  Broivne''s  Rep.  90. 

Where  th'  arbitrators  found  by  mistake  for  the  plaintiff  in  replevin,  which  error 
they  afterwards  certifier'  ;  the  C"Urt  set  aside  the  first  report,  and  an  execution  that 
had  issued  on  it      J\''ewton  v.  Gramb'j,  ibid.  235. 

A  repot t  of  refeiees  certifying  that  the  parties  had  dispensed  with  their  being 
sworn,  is  prima  facie  evidence  of  the  fact.     Brink  v.  Bell,  4  Teates'  Rep  491. 

In  J\'ew  Jersey,  •Mbiw.no'S  may  award,  if  the  submission  authorise  it,  that  one 
party  shall  execute  conveyances  to  the  other;  but  such  an  a  ward  will  not  pass  title  to 
the  laud,  anti  in  case  of  uon-coinpliance  with  the  award,  the  remedy  is  on  the  bond. 
Dunn  ex.  d,  Snedeker  v.  Allen,  Penn.  Rep.  35. 

THE  AWARD. 

A  report  of  referees  under  the  Stat,  of  1786,  c.  21,  in  Jlfassachusetts,  must  be  to 
the  Court  of  Cominon  Pleas,  at  the  terra  holden  ne.\t  after  it  had  been  agreed  upon ; 


NOT  RECORDS,  ^^y 

assent  to  it,  (1)  and  where  it  is  in  writing  prove  the  execution  chap.  ii.  s.  2. 

Awards. 


and  if  it  be  made  to  a  Court  which  shall  be  in  session  at  the  tim<  ,  or  which  shall  he  ., ,  j^ 
holden  after  the  next  succeeding  term,  the  submission  shall  be  ipso  facto  ditcharged  ;  {,  Philps  ubi 
or  ifjudgmetit  shall  be  entered  thereon,  it  may  be  reversed  on  writ  of  error.     Mott  supra. 
V.  Anthony,  5  JMass    Rep.  489.    Soiithioorth  v.  Bradford,  ibid.  524.    Bacon  v. 
Ward,  10  Do  Ul.  Durelly.  Merrill,  1  Do.  411.    Whitney  adm.  v.  Cojk,  5  Do. 
1 59. 

If  the  submission  be  of  all  demands,  and  the  report  embrace  only  a  part,  the 
Court  will  not  render  judgment,  but  will  recommit  to  the  referees  the  subject  mat- 
ters referred  to  them.  Boardimin  v.  Eng'land,  6  Jlluss.  Rep.  70. 

In  Virginia,  an  award  can  be  set  aside  (miy  for  some  illegality  or  injustice  appa- 
rent on  the  face  of  it,  or  for  misbehaviour  in  the  arbitrators.  Sherman  v.  Beat, 
\  Wash.  Rep.  14.  Pleasants  etal.v.  Ross,  ibid.  156.  Kincaid\.  Cutmingham. 
'2Munf.  Rep.  1.  Maidovey.  Thrift,  5  Do.  i9 3.   Walker  v.  Long,&  Do.  76. 

So  in  JVerv  York  there  must  be  misbehaviour  or  corrupt  conduct  in  the  arbitra- 
tors. Perkins  v.  Wing,  10  Johns  Refi.  143. 

In  an  action  on  an  award,  if  it  appear  from  the  fiarr.  that  the  arhitr-ators  decided 
on  fi  plain  mistake  in  law,  it  will  be  held  b»d  on  demurrer.  T.  of  Watertoton  v . 
T.  of  Waterbury,  1  Root's  Rep.  212. 

If  an  award  of  ri'ferees  in  the  Court  below  b?  good  on  its  face,  the  Court  of  Error 
will  not  inquire  into  the  exceptions  made  to  t»e  proceedines  of  the  referees  as  to 
matttrs  of  fact  or  of  law.  Marker  v.  Elliott,  7  Serg.  &  R.  Rep.  284.  Vide  Barlovj 
V.  Todd,  3  Johns.  Rep.  3fi8. 

The  Court  refused  to  interfere  with  an  award  of  a  barrister  at  l;i\v,  to  whom  the 
cause  had  been  referred,  both  as  to  the  law  and  tSe  fact,  althougti  the  point  at  law 
decided  by  him,  was  at  least  doubtful.  Ca7npbell  v  Ttoemloiv,  1  Price's  Ejo.  Rep. 
81.  Roosevflt  et  al.  v.  Thur-man,  I  Johns  Ch.  Rep  220.  Et  vide  Swinford  v. 
Brown,  1  JK".  Gotve's  Rep.  5.  Richards  v.  Drinker,  1  Hals.  Rep.  307, 

An  award  by  arbitrators,  is  C'nclusive  in  equity,  unless  corruption,  partiality,  or 
gross  misconduct  on  the  part  of  the  arbitrators  can  be  ihewn,  or  unless  thsy  were 
mistaken  in  a  plain  point  of  law,  which  materially  affected  the  int>  rest  of  tin-  parties. 
Alwyn  V,  Perkins  et  al.  3  Desuu.  Eg.  Rep.  297.  Herrick  v.  Blair  et  al.  I  Johns. 
Ch.  Rep.  361.  Sheppard  v.  Merrill,  2  Do  276.  Under  hill  et  al.  v.  Van  Court- 
land  et  al.  2  Do.  361,  and  in  Er.  IT  Joh?is.  Rep.  405.   Todd  v.  Binloio,  ibid.  551. 

In  JN'Vw  York  the  rule  is  settled,  that  an  award,  although  (he  submission  were 
made  a  rule  of  Court,  cannot  be  impeached  at  common  law,  either  in  an  action 
on  the  award,  or  collatetally,  for  a  mistake  either  of  law  or  offset,  and  except  in 
Chancery,  it  can  only  be  avoided  for  corruption  or  partiality  in  the  arbitrators, 
JK'ewlttnd  V.  Douglas,  2  Johns.  Rep.  62.  Barlow  v.  Todd,  3  Do  367  Shepperd  v, 
JVatrous,  3  Cuines'  Rep.  166.  Crunsto7i  v.  Kenny'sexs.  9  Johns.  Rep.  212.  Jack- 
son ex.  d    Van  Jllen  v.  Jlmbler,  14  Do.  96. 

An  award  of  arbitrators  is  conclusive,  but  a  report  of  referees  is  like  the  verdict 
of  :<  jury,  subject  to  the  revision  and  control  of  the  Court.  A  cause  referred,  but 
not  accor<liiig  to  the  Statute,  is  regarded  as  a  submission  to  arbitrators.  Miller  v, 
Vaughun,  1  Johns.  Rep.  315.  ibid.  492. 

In  Connecticut  the  law  ai)pears  the  same,  Bulkley  v.  Stewart,  1  Day's  Rep.  130, 
Lewis  v.  Wildman,  ibid  153. 

For  gross  and  palpable  mistakes,  an  awarded  common  law  may  be  avoided  in 
some  of  the  States.  Morris  et  dl.  v.  Ross,  2  H  &  Miinf  Rep.  408.  Cleury  v.  Coot 
et  al.  1  Huyw.  Rep  225.  Sumpter  v.  Murrell,  2  Bay'.i  Rep.  250.  Copeland  v.  Jin- 
derson,  2  Call's  Rep.  106.  Halcomb  v.  Flournoy,  2  Do  4-^3.  Flmimoy's  exs.  v 
Ilulcomb.  2  Munf  Rep.  .'5  V    Sliermaii  v.  Beale,  1  Wash.  Rep.  II. 

I'ive  several  actions  between  the  same  parties  were  referred,  and  but  one  report 


lis  PUBLIC  WRITINGS, 

Chap.  II.  s.  2.  of  the  deed  of  reference,  and  that  by  all  parties  ;  for  ifnt  does 

Awards. 


for  tt>e  vhole  sum  found  due.  The  report  was  confirmed  by  the  Court.  Brcnon 
V.  Scott et  al.  1  Ball.  Rep.  145.  Vide  Hart  et  al.  v.  James,  ibid  355.  Sed  vide 
Groffv  Jfic-'ser,  3  Sevff,  &  It.  Rep.  264,  wht  re  TiLGHMiN  C.  J.  says,  that  he  had 
always  mderslood,  that  referees  could  not  consolidate,  and  that  under  the  Act  of 
18T0,  they  had  no  right  lo  do  it,  without  defendant's  consent. 

Arbitrators  csnnot  make  a  supplementary  report,  at  the  instance  of  the  plaintiff 
•without  defendant's  knowledge.    Hart  et  al  v.  James,  1  Dall.  Rep   355. 

An  i/w;/«Ve  chosen  by  the  referees,  ought  to  examine  the  witness-i-s  and  docum'-nts 
for  himself,  in  the  presence  of  the  parties,  without  relying  solely  on  the  informa- 
tion or  facts  reported  by  them.  Falcmier  v.  JVlontgomery  etal.  4  Dall.  Rep.  232. 
JPassmore  v.  Pettit  et  al.  ibid.  271. 

The  same  cause  which  will  induce  the  Court  to  set  aside  a  verdict,  and  grant  a 
new  trial,  will  eovirn  in  the  cas'  oFawanls  ;  and  therefore  if  it  appear,  that  there 
lias  been  mamfest  injustice,  or  a  plain  atid  clear  mistake, either  in  law  oi-  in  f;tct,the 
report  will  be  set  aside.  Williams  v.  Craig  1  Dall.  Rep.  315.  fVtkoffetal.  y. 
Cdxe,  1  Yeates''  Rep.  353.  Warder  v.  Parker  etal  2  Do.  513.  Williams  *.  Pas- 
chnll,  3  Do.  569.  Romans  v.  Robertson.,  ibid.  584.  Gross  v.  Zorger,  i/iid.  521 . 
Bondv.  Olden,  4  Do.  243.  Govett  v  Reed.  ibid.  456.  Bell  v  Jf  Call,  1  Browne's 
Rep.  128.  Lffwer  Dub.  School  v  Paid,  1  Binn  Rep.  59.  Jlubelv.  Ealer,2  Binn. 
Rep.  582  in  note,  S.  C  1  Brovme's  Rep.  105  ,  in  note 

In  Connecticut ,  the  defendant  cmnot  take  advantage  of  any  defect  in  an  award, 
which  respects  others  ;  it"  good  as  tar  as  concerns  him,  it  is  sufficient.  JVettleton  v. 
Buck'ngftain,  1  Root.  Rep.  149 

An  award  must  be  Jlnal  and  zertain.  Carter  v.  Ross,  2  Root.  Rep.  507.  Vide 
Grier  et  al.  v.  Grier,  1  Dall.  Rep.  174.  I,es.  of  Lattimores.  Martin,  Addis.  Rep. 
11.  Gonsales  v.  Deavens,  2  Veates'  Rep.  539.  Young  v.  Revben,  1  Dall.  Rep. 
119.  Purdy  v.  Delavan,  1  Caines''  Rep.  304.  Solomons  v.  M'Kinsty,  \3  Johns. 
Rep.  17. 

An  award  will  not  be  set  aside  on  slijht  grounds.  Combs  v.  Wyckoff,  Col.  £J 
Caines'  Cas.  in  Pract.  20-2.     Vide  Hawkins  v.  Bradford,  ibid.  216. 

But  it  will,  unless  it  decides  the  whole  matter  submitted,  and  so  if  it  exceeds  the 
subject  submitted,  unless  .he  excess  can  be  separated.  Hiiff"  v.  Parker,  cited  4 
Dall.  Rep.  285.  3  Yeatei'  Rep.  567.  Vide  Martin  et  al.  v,  Williams,  13  Johns. 
Rep.  264. 

An  award  that  plaintiff  shall  pay  the  cost  of  suit,  and  no  more,  is  equivalent  to 
finding  no  cause  of  action.  Traquair  v.  Redinger,  4  Yeates'  Rep.  282.  Vide 
M'Denrtott  v.  U.  S.  Ins.  Co.  3  Serg.  ^  R.  Rep.  604.  Macon  v.  Crump,  1  Call's 
Rep.  575. 

Referees  cannot  delegate  their  authority  to  others,  or  provide  for  the  settlement 
of  a  future  dispute  by  annther  trihunitl,  unless  they  have  power  to  do  so  by  agree- 
ment. Levezeyv.  Gorgas,  4  Dall.  Rep.  71.  Vide  Kingston  v.  Kincaid,  C.  C. 
April,  1800,  J/.  S.  Rep. 

It  is  not  a  sufficient  objection  to  an  award,  that  the  remedy  for  each  party  is  not 
the  same.  Kunckle  v.  Kunckle,  1  Dall.  Rep.  364,  Vide  Stuart  v.  Ralston,  ibid. 
565, 

A  report  finding  for  plaintiff  in  ejectment  is  good,  though  neither  damages  nor 
costs  are  awarded.     Austin  v.  Snow's  les.  2  Dall  Rep.  157.     1  Yeates'  Rep.  156. 

Under  a  general  submission  of  all  controversies,  the  arbitrators  may  award  as  to 
real  property.  Sellick  et  al.  v.  Adams.  15  Johns.  Rep.  197.  Et  fide  Munroe  v. 
Allaire,  2  Caines'  Rep.  32(i. 

An  award  of  costs  is  good,  though  the  principal  sum  if  found  by  a  jury,  would  not 
carry  costs.  MLaughliny.  Scot,  1  Biiin.  Rep.  Cl,  Vide  Strang  v.  Ferguson, 
I'k  Johns.  Rep.  Ifjl. 


NOT  RECORDS.  ^^g 

not  appear  to  have  been  so  executed,  there  was  no  consiceration  Chap.  n.  s.  2. 

Awards. 


Part  of  an  aword  may  be  confirmed,  and  p»rt  set  aside.  Woglam  v.  Burnes,  1 
Jiinn.  Rep.  109.  Galloway  v.  Webb,  Hard.  Rep.  318.  Lyle  et  al.  v.  Rodgers, 
5  Wheat.  Rep.  394. 

An  award  ouglit  not  to  be  set  aside  for  a  difference  of  opinion  ;  but  fora  palpable 
mistHke  in  the  arbitrators,  it  may.     Morris  v.  Ross,  2  H.  &  JVIxmf  Rep  408. 

Awards  are  to  be  construed  according  to  their  intention  appearing  froir  the  words 
of  the  whole.  Grier  et  al.  v.  Grier,  1  Dall.  Rep.  174.  Jnties  v.  Millei,  ibid.  188. 
Kvnckle  v.  Kunckle,  ibid.  365.  Gonsales  v.  Deavens,  2  Yeates^  Rep.  j39.  Vide 
Boi-retts  v.  Patterson,  Tayl  Rep.  37.  Cleary  v.  Coor  tt  al.  1  IIay^u  Rep.  225. 
JSlackledge  v.  Simpson,  2  Do.  30.     Galloivity  v.  Webb,  Hard.  Rep.  318 

An  award  to  pay  tlie  executors  of  .4.  is  sufficiently  certain.  Grier  et  ai.  v.  Grier, 
1  jOa//  ^e/).  173.     Vide  Bryaiit  v.  jWlner,  Rep.  in  Ct.  of  Covf.  313. 

If  two  defendants  enter  a  rule  of  arbitration,  and  an  award  be  given  against  one 
only  ,  the  construction  of  law  is,  that  it  is  in  favour  of  the  other.  Lentz^.  Stroh,  6 
Serg   &  R.  Rep.  34. 

Whm  a  report  has  been  returned  to  the  same  referees,  both  parties  have  a  right 
to  be  heard  before  them.  Bowers  et  al.  v.  Worrell,  1  Browne's  Rep.  21 'i. 

In  cases  of  mistake  by  the  arbitrators,  vide  J^ewland  v.  Douglass,  2  .Johns.  Rep. 
62. 

In  cases  of  uncertainty  of  awards,  vide  J\lurray''s  adm.  v.  Bruner,&  Serg.  SJ  R. 
Rep.  276  Schuyler  \.  Van  Der  Veer,  2  Caines'  Rep.  235.  Jackson  ex.  d.  Stanton 
V.  De  Long  9  Johns.  Rep.  43. 

Under  a  plea  of  no  award,  the  defendant  may  shew  that  the  arbitrators  awarded 
CD  a  matter  notsubmitted  to  them.  JMacomb  et  al.  v.  Wilber,  16  Johns.  Rep.  111. 

An  award  fixing  the  boundaries  of  laud,  will  not  be  received  in  an  action  of  tres- 
pass quare  eluvium  f regit.  Drane  v.  Hodges,  I  Har  &  JiPHen.  Rep.  262.  Vide 
West  V.  Stigar,  ibid.  247 

Where  there  is  a  proviso  in  the  bond  of  submission  that  the  award  shall  b"  under 
the  hands  and  seals  of  the  arbitrators,  an  award  in  writing,  but  not  under  seal,  is 
bad.  Stanton  v.  Henry,  1 1  Johns.  Rep.  133.  Rea  v.  Gibbons,  7  Serg.  ii  R.  Rep. 
S04. 


THE  REMEDY  ON  THE  AWARD, 

A  bill  in  Equity  for  the  specific  performance  of  an  award,  is  common  and  proper. 
Smallwoodv.  Mercer  et  al.  1  Wash.  Rep.  295.  Vide  Baker  v.  Glass,  6  Munf. 
Rep.  212. 

In  an  action  of  debt  on  an  award,  the  plaintiff  need  not  set  forth  more  than  what 
is  ill  his  favour,  and  sufficient  to  sui)port  his  df-mand.  He  need  not  shew  the  award 
on  both  sides.  M^Kinstry  v.  Solomons,  2  Johns.  Rep.  57.  Diplee  v.  Best  et  al.  11 
Do.  103. 


OF  THE  REMEDY  ON  THE  AWARD,  IN  PENNSYLVANIA,  UNDEK 
THE  ACT  OF  1705. 

If  one  of  the  parties  be  ordered  by  the  award  to  do  a  specific  act,  he  may  be  com- 
pelled by  attachment  to  do  it.  Kunckle  v.  Kunckle,  1  Dall.  Rep.  364.  Vide  Black- 
bum  et  al.  V.  Murkle,  6  Binn.  Rep.  174. 

A  judgment  on  report  of  referees,  with  stay  of  e.tecution  until  a  deed  for  land 
should  be  filed,  and  until  th'  Court  should  adjudge  the  same  to  convey  a  good  title 
in  fee  simple  to  the  plaintiffs,  was  held  good,  on  error.     Barde  et  ah  v.   Wikon, 


I2Q  r^UBLlC  WRITINGS, 

Chap.  II.  s.  2.  for  the  submission  of  the  defendant.(l)(/t)  The  award  must  have 
General  Ob-  |.|jg  gtanp  imposed  by  the  Lei-iislature,  but  when  two  arbitrators 

servatioiis  as  ,.,  •  ... 

totheeflfectofare  at  loerty  to  appoint  an  umpire,  their  appointment  requires 

sentences.         j^^  stam?.(2) 

'  Having,  when  speaking  of  the  different  Courts  individually, 

T»!  Chace^'is  hut  slightly  mentioned  the  cases  in  which  judgments  or  sen- 
East,  209.  tences  oi  those  Courts  would  be  evidence,  I  shall  now  proceed 
(2)  Rouiledge  j-q  coUccl,  into  one  view,  the  general  rules  which  are  applicable 

7j.  Thornton,  „  °  ^'^ 

5  Taunt.  704.  to  all. 

Vide  11  St.  It  was  before  observed  that  the  judgment,  sentence,  or  decree, 
T*^'  ^^^7  s,  of  the  sane  Court,  or  one  of  concurrent  jurisdiction,  directly  upon 
the  poini,  may  be  pleaded  as  a  bar,  or  given  in  evidence  as  con- 
clusive bitween  the  same  parties  upon  the  same  matter  directly 
in  question  :  and  in  like  manner,  the  judgment  of  a  Court  of  ea:- 
elusive  jurisdiction,  directly  upon  the  point,  is  conclusive  upon 


3  Yeates'  Mep.  149.  S.  P.  J\7cholasv.  Wolfersperger,  5  Serg.  &  R.  Rep.  167. 
Under  a  compulsory  arbitration. 

If  a  report  of  referees  finds  a  sum  of  money  due  from  the  plaintiff  tit  the  defend- 
ant, the  deferdant  cannot  enter  up  judgment  and  issue  execution.  He  must  pro- 
ceed by  scire  facias,  or  probably  by  attachment.  Blackburn  et  al.  v.  Markle,  C 
Binn,  Rep  17i. 

Awards  made  under  the  Act  of  1705,  in  Penitsylvaiiia,  and  confirmed  by  the 
Court,  have  the  same  effect  as  the  verdict  of  a  jurv ,  and  no  more.  WiUiams  v, 
Craig,  1  Ball.  Rep.  314.     Duer  v.  Boyd  et  al.  1  Serg.  &  R.  Rep.  203. 

An  award  of  referees,  in  ejectment,  under  the  Act  of  1705,  where  the  submission 
is  of  all  matters  in  controversy  in  the  case,  is  not  conclusive  of  title.  Duer  v.  Boyd 
et  al.  1  Serg.  &  R.  Rep.  203.  Les.  of  Taggart  v.  Bickley,  cited,  1  Serg.  &  R, 
Rep.  209.  213. 

So  an  award  at  common  law,  in  an  action  of  ejectment,  where  the  title  was  sub- 
mitted to  the  arbitrators,  was  determined  to  be  conclusive  of  the  title  between  the 
parties.  C<ilhoun''s  les.  v.  Dunning,  4  Dall.  Rep.  120.  Sed  vide  Dixon's  les.  v- 
Moorhead,  Mdis.  Rep.2S\.  Duer  v.  Boydet  al.  1  Serg.  &  R.  Rep.  203. 

AVhere  an  award  on  the  face  of  it  is  final,  nothing  dehors  can  be  pleaded  or  given 
in  evidence  against  it.     Barloiv  v.  Todd,  SJo/ms.  Rep.  367. 

An  award  under  a  rule  of  Court,  is  a  bar  to  any  antecedent  claim."  in  Connecticut. 
Park  V.  Halsey,  2  Root's  Rep.  100. 

Money  voluntarily  paid  in  compliance  with  an  award  of  arbitrators,  cannot  be  re- 
covered back  in  an  action  of  indebitatus  assumpsit.  Buckley  v.  Steviart,  1  Day\ 
Rep.  130. 

An  award  which  is  final  and  conclusive,  will  be  a  bar  to  a  subsequent  suit,  for  the 
same  cause  of  action.  Purdy  v.  Delavan,  1  Caines'  Rep.  304.  Vide  Shepardy. 
Ryers,  15  .lohns.  Rep.  497. 

A  submission  to  arbitrators  is  a  good  consideration  for  a  note.  Shepherd  v.  Wat. 
rous,  3  Caines''  Rep.  166. 

If  in  an  action  for  words,  the  matter  be  left  to  arbitrators,  it  canuot,  in  an  .-action  to 
recover  the  sum  they  awarded,  be  shewn  that  they  were  not  actionable.  ?6jf/. — 
Am.  Ed. 

(A)  An  award  made  pendente  lite,  cainot  be  given  in  evidence  upon  the  plea  of 
n'171  assumpsit.    Harrison  v.  Brock,  1  Munf.  Rep.  22. — Am,  Ed. 


NOT  RECORDS.  f^i 

the  same  matter  between  the  same  parties  cotninjn;  incidentally  in  Chap,  ir,  s.  2. 

question  in  another  Court  for  a  different  purpose.(l )  But  "hither  [^j.'^^l'.'*^'^*^''' 

the  judgment  of  a  concurrent  or  exclusive  jurisdiction,   is  evi- to  the  effect  of 

dence  of  any  matter  which  came  collaterally  in  question,  though  ^*^""^''"'' "• 

within  their  jurisdiction  ;  nor  of  any  matter  incidentally  cogni- 

sable;  nor  of  any  matter  to  be  inferred  by  argument  from  thest. Tr.  ii6i. 

judgment.(i) 

Judgments  which  are  merely  on  questions  of  property  be- 
tween party  and  party  are,  as  was  elsewhere  observed,  evidence 
only  between  the  parties,  or  those  claiming  under  them  ;  but 
those  in  rem,  or  in  the  Ecclesiastical  Courts,  on  matrimonial  Vide  4  Co. 
causes,  are  evidence  against  third  persons. (A:)     In  these  cases  ^^,'1.^^,^^^ 
nevertheless,  a  stranger  is  always  at  liberty  to  shew  that  such  "  't>-  {/•.) 
judgment,  sentence,  or  decree,  was  obtained  by  fraud  and  collu-^',.  262 
sion  between  the  parties  to  it ;  for  fraud  is  an  extrinsic  collate- 2  Ves.  246. 
ral  act,  which   vitiates   the   most  solemn  proceedings  of  Courts 
of  Justice,  and  though  it  is  not  permitted  to  shew  that  a  Court 
was  mistaken,  it  may  be  shewn  that  it  was  misled;  but  the  par- 
ties to  them  are  not  permitted  to  avail  themselves  of  their  own 
fraud. (/) 

(i)  By  the  common  lnw,  ih  jiMgment  of  a  foreign  Court  is  conclusive  when  the 
same  matter  comes  again  incidentally  in  question.  Croudson  v.  Leonard,  4  Crunch 
Rep.  442. 

The  judgment  or  decree  of  a  competent  Court  upon  a  matter  within  its  jiirisdic- 
lion,  is  conchisive  of  the  rights  of  the  parties,  on  tht-  same  point,  in  any  'th.  r  Court 
of  concurrent  jurisdiction.  Starkie\.  JVoodward,  1  J\roit  &  .M' Cord's  Jifp  ,3'^9,n. 

In  JVew  York,  where  an  admeasurement  of  dower  has  been  made  by  the  Surro- 
gate, pursuant  to  the  Statute,  (1  JV.  R  L.  p  60,)  and  ther;  has  beeii  no  apptal  or 
review  of  the  proceedings,  in  an  action  of  ejectmi'iit  brought  by  the  widow,  the  ad- 
measurement is  conclusive,  until  reversed,  as  to  the  part  she  is  entitled  to  receive. 
Jackson  ex  d.  J[liUer  v.  Hixon,  \7  Johns   Rep.  123. — Am.  Ed. 

(t)  A  sentence  of  condemnation  by  a  Court  of  competent  jurisdiction,  proceeding 
7n  rem,  is,  in  an  action  of  ti-espnss  for  the  property  seized,  conclusive  evidence 
against  the  title  of  the  plaintiff.  Gelslon  et  al.  v.  Royt,  3  Wheat.  Rep.  315.  Et 
vide  ffoyt  V.  Gelston  et  al.  I;>  Johns   Rep.  141.     And  in  error,  ibid.  501. 

A  judgment  or  decree  of  a  Court  ('f  competent  jurisdiction,  is  cmclusive,  wherever 
the  same  matt^  r  is  again  brought  in  c  i.troversy.  Hopkins  \.  ife,6  Wheat.  Rep.  113. 
But  this  rule  does  not  app'y  wher<'  the  points  come  collaterally  in  issue,  ibid.  Et 
vide  Simpson  v.  Hart,  1  Johns.  Ch  Rep.  91 Am.  Ed. 

{I)  In  an  action  for  the  price  of  rum  sold,  the  defence  was,  that  it  v.-is  adulterated. 
To  prove  the  adulteration,  the  record  of  condemnation  was  offered  in  evidence,  and 
to  connect  the  plaintiff  with  it,  a  record  was  offerei!  of  proceedings  by  the  Crown  foP 
pen-'ities  in  which  thf  d-fendant  was  cofivict'-d.  Gibbs,  C.J.  held  the  record  of  con- 
demiriition,  being  in  rem,  to  be  admissible,  but  refused  to  admit  the  r"cord  of  con- 
viction for  penalties,  alleging,  that  fis  it  was  in  personam,  it  could  not  be  evide-ice  in 
a  case  where  the  parlies  were  different.  Hart  et  n!  v.  M'Mmany  4  Price's  Exc 
Rep.  154,  note.  ' 

R 


122  '       PUBLIC  WRITINGS, 

Chap.  II.  s.  2.     Conformably  to  these  general  principles,  the  following  deci- 
stiron?;.:   sions  have  taken  place: 

theefTcctof        If  a  question  of  legitimacy  arise  incidentally  upon  a  claim  to 
__^^^^^^___  a  i*eal  estate,  a  sentence  of  nullity,  or  one  in  affirmance q{ ?i  mar- 
riage in  the  Ecclesiastical  Court,  is   conclusive  evidence  against 
the  parties,  or  those   who  have  acquiesced  in  the  sentence,  and 
all  claiming  under  them;  as  where  A.  and  B.  being  married,  C. 
libelled  against  the   wife  on  a  pre-contract,  which  the   Spiritual 
Court  enforced,  and  B.  and  C.  afterwards  married,  living  the  first 
husband,  and  had  a  son,  who  brought  an  ejectment,  and  made  out 
his  title  as  heir  to  his  grandfather;  it  was  held,  that  the  sentence 
\\ 9.%  conclusive  evidence  of  liis  legitimacy  :(1)  and  in  like  manner, 
(i)Bunting's  where  two  persons  had  married  within  the  age  of  consent,  and  the 
'^^^^' '**-'°*'^' Ecclesiastical   Court  pronounced  a  sentence  of  divorce  on  that 
ground,  this  sentence  was  held  conclusive  of  that  fact,  as  against 
the  children  of  the  marriage,  and  destroyed  their  legitimacy.(2) 
(2)  Kenn's      So  a  Sentence  in  a  cause  o{  jactitation,  has  been  held  conclusive 
case,      0.4  •  evidence  against  the  issue  in  an  ejectment.(3)     And  where  an 
(.3)  Jones  r.    action  has  been  brought  upon  a  contract  of  marriage,  or  for  adul- 
•iiZ'    "'"     tsfj  ^^^th  the  plaintiff's  wife,  a  sentence  in  the   Ecclesiastical 
Court  against  the  contract  in  the  one  case,(4)*  or  declaring  the 

(4)  Dacostar.  supposed  wife  free  in  ?i.  jactitation  cause  in  the  other,(5)  is  con- 
cilia Real   '2      ,      -  •  , 
Sua.  <J6i.        elusive  evidence. 

So  a  sentence  of  expulsion  unappealed  from,  given  in  evidence 

(5)Clewes  V.  .       ^  .         •     J-    .  ,  t  w  f  II 

Baihuist,       on  an  ejectment  or  indictment  tor  assaulting  a  tellow-commoner 
2  Sua.  9C0.    of  Queen's  College,    Cambridge,  by  turning  him  out  of  the  gar- 
dens, is  conclusive  for  the  defendant,  and  consequently  evidence 
on  the  part  of  the  lessor  of  the  plaintiff,  or  prosecutor  to  prove 
the  irregularity  of  the  sentence,  is  inadmissible.(6)     And  a  con- 
(6)Rexr.      viction  before  a  magistrate,  having  competent  jurisdiction,  is  till 
CowpTi's.      quashed  or  reversed,  conclusive  evidence  in  favour  of  the  jus- 
Phiilps-)       tice  in  an  action  against  him  for  false  imprisonment.(r) 
Raym.  5.  I'^  all  these  cases  the  parties  to  the  suit  were  parties  to  the 

sentence  or  conviction,  or  had  acquiesced  under  it,  or  claimed 
T>.  Ward  under  those  who  stood  in  that  situation  ;  and  for  the  same  rea- 
Wi'ichesttr    gQ,^   in  the  case  of  the  Duchess  of  Kingston,  Lord  Apsley  consi- 

Sura.  Assizes    ,         ,,  i-     i       w-<      i      ■       ■      i    r>,  ji-i 

1757, cor.       dered  the  sentence  or  the  Ecclesiastical  Court,  declaring  her 

Yates.  J.  

7  T.  Rep. 

633,  Dote.  A  judgment  or  decree  obtained  on  false  and  fraudulent  suggestions,  is  void.   £or- 

den  V.  Fitch,  15  Johns.  Rep.  121.— Am.  Ed. 

•  Tills  case  was  before  the  Statute  26  Geo.  2,  c.  33,  by  the  13th  section  of  which 
Statute,  it  is  enacted,  that  no  suit  shall  be  hail  in  the  Ecclesiastical  Court,  to  compel 
a  celebration  of  marriage,  by  reason  of  any  contract. 


NOT  RECORDS. 


123 


nee  from  ffarvey,  to  be  so  conclusive  against  the  lieir  at  law, chap.  n.  s.  2. 
and  next  of  kin  of  the  Duke,  as  to  be  pleadable  in  bar  to  a  bill '"'''""'« of 
brought  by  them  to  set  aside  his  will  on  the  ground  of  fraud  in  lisOiciions. 
the  Duchess,  in  imposing  herself  upon  him  as  a  single  vvoman,(l)    ——____ 
but  when  the  same  sentence  was  offered  as  conclusive  evidence (i)-^™bi. 750, 
against  the  charge  of  bigamy,  the  House  of  Lords  held  that  it 
was  not  so  ;   first,  because  the  King  was  no  party  to  the  first 
suit,  nor  could  become  so  ;  and  secondly,  because  the  Ecclesias- 
tical Court  had  no  judicial  cognisance  of  crimes  :(2)   and  upon  ('2)  Vide  u 
the  same  principle  it  was  held  by  Lord  Ellenborough,  that  the  ^''    '■•-'• 
probate  of  a  will  was  no  evidence  in   answer  to  an  indictment 
for  forging  the  will, (3)  though  the  contrary  had  been  previously  (3)  Rex  f. 
held.(4)     In  like  manner  in  Prudham  v.  Phillips,  (cited  Ambl.  ?  steTs.I,^"' 
762,  and  several  times  in  the  Duchess  of  Kingston's  case,)  it  A-s.zes,  I802. 
was  held,  that  the  sentence  in  the  Ecclesiastical  Court,  annul- po,J^^",f  355 
ling  a  marriage,  might  be  avoided  by  third   persons  on  account 
of  fraud  and  collusion  in  the  parties,  though  the  parties  them-  \'i,,c«nt ""' 
selves  were  estopped  from  shewing  their  own  fraud.  So,  though  ^  ^^^^-  *8i. 
a  judgment  of  ouster  against  one  corporator  is  admissible  against 
another  deriving  title  through  him,  to  prove  that  the  person  oust- 
ed had  no  title  ;(5)  and  the  conviction  of  a  principal  felon  may  (5)  Rex  w. 
be  received,  to  prove  the  felony  committed,  against  the  person  5^3[|j.^.^'259g 
indicted  as  an  accomplice,  yet  they  are  neither  of  them  conclu- 
sive evidence  of  these  facts,  but  may  be  controverted  by  the  party 
against  whom  they  are  so  read.(6)(m)  (6)  Vide  For- 

But  in  an  action  against  Mr.  Harvey,  by  a  creditor  of  his  sup-*^^''*^''-^-^^'* 
posed  wife  (they  living  separate,)  he  shewed  a  sentence  in  a 
cause  of  jactitation  declaring  against  the  marriage,  and  that  not 
being  impeached  by  the  creditor,  was  considered  as  conclusive 
evidence  against  the  marriage,  though  it  was  afterwards  reversed 
onappeal.(7)  (r)  vide  list. 

In  cases  where  every  person  has  an  opportunity  of  coming  into  ^  ■■•  '^^^^ 
Court,  and  being  made  a  party  to  the  suit,  as  in  all  proceedings 
in  rem,  and  probates  of  wills,  the  sentence  or  grant  of  probate 
binds  all  persons,  and  none   can  be  permitted   to   impeach  the 

(»j)  The  decision  oF a  Court  of  pt-cuhar  and  •  xclusive  jmisdictioN,  is  coi7)plete- 
ly  binding  upon  the  judgment  of  everv  other  Court,  whepp  the  same  subject  matter 
comes  incidentally  in  controversy.  Gelstonet  al.  v.  Hoiit,  3  IVheat.  Rep.  315.  Vide 
1  Johm.  Cli.  Rep.  543.  13  Johns.  Rep  .i61.    The  Mary,  9  Crandi's  Rep.  142 

To  i-.nder  the  sentence  of  a  District  Court  of  the  U.  States,  silting  as  a  C'-nn  of 
Adniiralt),  and  deciding  ih^  question  of  prizi  .  conclusive  on  th^-  same  poini  arising 
incidentally  ni  the  Slate  Coiirl,  such  District  Coiip  t  must  have  liad  jurisdiction  of  the 
subject  inatlir  ;  and  whether  it  had  or  not,  the  Stale  Courts  are  competent  lo  exa- 
mine and  decide.   Slocim  t.  Wlieelev  et  al.  1  Con.  Rep.  429.— Am.  Ed. 


^2^  PUBLIC  WRll  iNGi, 

Cii^  p.  n.  s.  2.  proceedings  in  another  suit,  when  it  comes  incidentally  in  ques- 

Acts  of  State.  ^i^jj_^^^ 

When  any  public  measure  has  been  adopted  by  the  govern- 
Tr.  218. 22'2.  wient  of  this  country,  it  is  usual  to  announce  such  measure  to  the 
public  by  means  of  a  gazette,  which  is  published  under  the  sanc- 
tion and  control  of  government ;  and  of  any  ^ct  of  State  so  an- 
(2)Rexi).      nounced,   this  gazette   is  of  itself  sufficient  evidence  ;(2)  the 
Rep.436.       King's  proclamations,  addresses  from  the  people  to  the  Crovi^n, 
and  the  like,  may  be  proved  in  this  manner  without  a  production 
of  the  proclamation  or  address  itself,  for  these  being  matters  oi" 
public  notoriety,   communicated  to  the  public  in  a  known  pre- 
scribed form,  the  law  pays  such  attention  to  the  established  rules 
of  office,  as  not  to  call  for  higher  evidence  than  that  to  which 
all  mankind  look  for  information  on  the  subject.     For  the  same 
3)BulN.  P.  reason,  ;«'oc/ama/ions,(3j  and  the  articles  of  war,(4)  as  printed 
by  the  King's  printer,  are  received  as  sufficient  evidence  of  such 
instruments  having  been  duly  issued  ;  and  where  a  proclamation 
Wit.  .^rs^ited  recited,  that  it  had  been  represented  that  outrages  had  beencom- 
5T.Kep.442.  naitted  in  different  parts  of  certain  counties,  and  offered  a  re- 
ward for  the  discovery  and  apprehension  of  the  offenders,  such 
proclamation  was  admitted  as  evidence  to  prove  an  introductory 
averment  in  an  information   for  a  libel  that  divers  acts  of  out- 
rage had  been  committed  in  those  parts ;  and  the  recital  in  an 
Act  of  Parliament  of  such  outrages,  and  making  provision  against 
(5)  Rex  r.      them,  was  held  to  be  admissible  for  the  same  purpose. (5)(n)  The 
&  S  532.       register  of  the  navy  office,(6)  with  proof  of  the  method  there 
ff  1  B  I  N  P  ^^^^>  to  return  all  persons  dead  with  the  mark  Bd.  is  sufficient 
249.  evidence  of  death  ;  as  is  the  daily  book(7)  of  a  public  prison,  to 

(7)  Rex  V  prove  the  time  of  a  prisoner's  discharge;  or  an  entry  in  the  books 
Aikies,Leach.  kept  by  the  quarter  sessions,  to  prove  not  only  the  prisoner's 

discharge,  but  that  he  was  actually  a  prisoner  on  the  day  when 

(8)  Doe  d.  he  appeared  to  be  so  by  the  entry .(8)  So  the  log-book  of  a  man 
Thorp,  5  M.  of  ^var  has  been  received,  to  prove  when  a  ship  became  part  of 
&  S.  72.  hef  convoy. (9)  (o)  And  entries  in  the  books  of  the  clerk  of  the 
(9)D'israeli    peace  of  deputations  formerly  granted  to  gamekeepers,  as  evi- 

V.  Jowett,  

1  Esp.  Cas. 

427.  (^n)  Articles  of  agreement  between  the  proprietaries  of  Pennsylvania  and  JVlary- 

land,  ascertaining  the  boundaries  of  the  two  provinces,  enrolled  in  the  Court  of 
Chancery  in  Etigland,  but  not  proved  or  recorded  in  Pemuylvania,  may  be  consi- 
dered in  the  light  of  a  State  paper,  and  admitted  in  evidence.  Rosses  les.  v.  Cut- 
shall,  1  Binn.  Rep.  399.— Am.  Ed. 

(o)  A  logbook  isevidence  under  the  Act  of  Congress.  Herrony.  Schooner  Peggy, 
Bee's  Rep.  58. 

It  is  evidence  to  prove  the  time  of  stay,  sailing,  and  departure,  Smalitvood  v. 
Mitcltell,  2  Hayw,  Rep,  146.— Am.  Ed. 


NOT  RECORDS.  jgK 

<lence  of  a  right  of  manor  in  the  person  granting  such  deputa- ciiap.  it.  s.  2 

tions.(l)  AmrfState. 

But  though  the  book  of  a  public  prison  is  suflBcient  to  prove""  ~ 

the  iime  of  a  commitment  or  a  discharge,  yet  the  cause  of  im-  Andrews^" 
prisonment  must  be  proved  by  other  evidence;  and  therefore,  in  3  B.  &  aw, 
a  question  of  bankruptcy,  where  the  supposed  bankrupt  had  been 
two  months  in  prison, (2)  it  was  held  that,  to  prove  the  fact  of(^)  Salter. 

...  .  1        •        1  /.        7  i^        I  ■    •       1  •     •         riiomas, 

his  imprisonment  having  been /or  debt,  the  original  commdtitur  :•,  Hos.  &  Pui, 
should  have  been  produced  ;  and  though  an  entry  made  at  the  ^^^• 
Custom-house,  of  the  transfer  of  a  ship,  would  be  good  evidence  (3)  Cooper  tj. 
against  the  person  making  the  affidavit  of  his  property  in  the^'?|!^j|'jj^  gQg 
ship  ;(3)  (jo)  yet  it  is  not  even  prima  fade  evidence  against  diFvA^cr v. 
stranger  named  in  it,  and  who  gave  no  authority  for  the  inser-2T;tunt  5. 
tion  of  his  name,(4)  nor  for  the  person  making  it,  without  proof 
of  his  possession  ;(5)  for  in  this  case,  it  should  be  observed  that^  .WalpoleJ 
the  officer  making  the  entry  only  records  the  fact  stated  to  him  i*  East.  226, 
by  others-Cg-)  (5)  ^ane  v. 

Anderson, 

4  Taunt.  642, 

(/>)  Q"e»'t*,  Whellier  the  register  of  a  ship  is  conclusive  evidence  of  title.  Clark  v, 
Richards,  1  Con.  Rep.  54.  In  Starr  et  al.  v.  Knox,  2  Do.  215,  it  was  held  not  con- 
clusive. 

Quere,  Whether  it  be  prima  facie  evidence,  that  she  belongs  to  a  citizen,  i>e- 
derer  v.  Del.  Ins.  Co.  C.  C.  Penn.  April,  1807,  M  S.  Rep. 

The  register  of  a  ship,  being  an  affidavit  made  by  one  of  the  defendants  (who  was 
returned  non  est  ijiventus,)  si»im%i\\»i  the  ship  belonged  jointly  to  him  and  the  other 
persons,  copied  from  the  books  of  the  naval  officer,  and  certified  under  his  seal  ot 
office,  was  allowed  in  evidence  against  the  defendants.  Woods  v.  Courier  et  al.  1 
Dall.  Rep.  141.— Am.  En. 

(q)  Under  the  21st  sect,  of  the  Impost  Act  of  March  2d,  1799,  {In§:  Dig.  188,) 
•which  enjoins  on  the  Collector  "  to  record  in  books,  to  he  kept  far  the  purpose,  all 
manifests,"  a  copy  of  the  manifest  of  a  vessel,  certified  under  the  hands  and  seals  of 
the  custom  house  officers  of  JB.  and  proved  by  a  witness  to  have  been  compared 
with  the  record,  was  ruled  admissible  on  an  indictment  for  destroying  a  vessel  at 
sea.   U-  States  v.  Johns.  4  Dall.Rep.  413. 

The  certificate  of  the  Governor  ot  a  ffest  India  island,  stating  that  the  defendant 
had  applied  for  leave  to  take  away  his  cargo,  to  save  ihe  penally  of  an  embargo 
bond,  and  which  permission  he  had  refused,  was  allowed  in  evidence.  If-  Slates  v, 
Mitchell  etal.  C.  C.  Penn.  Oct.  1811,  M  S.  Rep. 

But  the  certificate  of  the  Collector  GeweraZof  the  customs  of  the /fara?ma,  under 
his  seMl  of  office,  stating  that  a  cargo  insured  was  decreed  by  the  Intendant  to  be 
sold,  is  not  evidence  as  it  relates  to  the  transactions  of  another  tiibuttal,  which  are 
presumed  to  be  in  writing.   Wood  v.  Pleasants,  ibid.  April,  1813,  M.  S.  Rep. 

The  certificate  of  an  American  consul  at  a  foreign  port,  where  the  vessel  was 
forced  in  by  stress  of  weather,  that  the  ship's  papers  were  lodged  with  him,  is  evi- 
dence  of  that  fact,  but  no  other.   U.  States  v.  Mitchell  et  al.  supra. 

The  certificate  of  the  Secretary  of  State,  is  good  evidence  to  prove  that  a  foreign 
minister  was  r -ceived  by  the  government.  £/".  States  v.  Little,  C.  C.  Penn.  Oct. 
1808,  J)f.  S.  Rep. 

A  c  itificate  by  the  Secretary  of  the  Commonwealth,  slating  that  by  a  certificate 
of  the  Receiver  General,  it  appeared  that  the  purchase  money  had  been  paid  ou  the 


126  PUBLIC  WRITINGS, 

Chap.  II.  s.  2.     It  is  agreed,  that  to  prove  a  particular  custom,  a  printed  his- 

.  istory,     ^^j,^  jg  i^^j  evidence  ;  and  therefore,  when  Cambden's  Britannia 

was  oftered  in  evidence  on  an  issue,  whether,  by  the  custom  of 

Burgesses  of   DroUwich,  salt  pits  might  be  sunk  in  any  part  of  the  town,  or  in 

Droitwich,      ^  certain  place  only,  it  was  rejected  ;  and  J)us:dales^s  Monasti- 

Salk.  281.  '  r-        J  -11  •    c 

12  Mod.  85.  con  w-as  also  refused  on  a  question,  whether  an  abbey  was  infe- 
rior  or- otherwise.  But  it  was  said,  that  in  the  case  of  Stabler 
V.  Droitwich,  that  a  general  history  was  sufficient  evidence  of  a 
matter  relating  to  the  kingdom  in  general  ;(r)  and  the  case  of  St. 
Catherines  Hospital  was  cited,  where  a  chronicle  was  said  to  have 
been  allowed  as  evidence  to  prove  a  particular  point  of  history 

1  Vent,  149.  in  the  time  oi  Edward  111.  From  the  report  of  that  case,  it  ap- 
pears, that  the  question  being  whether  the  patronage  of  the  hos- 
pital was  in  the  Queen  dowager  or  the  Queen  consort,  a  record 
in  Edward  the  Third's  time  was  produced,  wherein  Isabel,  the 
Queen  of  Edward  II.  though  living,  was  stiled  nuper  Regina, 
and  the  right  determined  to  be  in  the  Queen  consort.  Speed's 
Chronicles  were  produced,  "  to  shew  that  at  that  time  Queen 
"  Isabel  was  under  great  calamity  and  oppression,  and  that  what 
"  was  then  determined  against  her  was  not  so  much  from  the 
"  right  of  the  thing  as  the  iniquity  of  the  times,  so  that  (as  is  ob- 
"  served  in  the  report)  that  authority  was  much  invalidated  from 

Lord  Broun-  "  the  circumstances  of  the  time."     The   same  point  was  again 

kerw.  Sir  R.  made  in  a  subsequent  case,  and  the  book  being  produced,  as  is 

Atkyns,  bkm.       ...       ,  '■  \        t        ^        c   r^  r     i    i      t\   n 

14.  said  in  the  report,  to  prove  the  death  of  Queen  Isabel,  Uolben 

said,  the  evidence  was  received  by  consent;  but  the  Chief  Jus- 
tice (Pemberton)  said,  he  knew  not  what  better  proof  they 
could  have  :  and  Wallop  said,  that  in  the  Lord  Bridgewater's 
case,  the  House  of  Lords  admitted  it  as  good  evidence.  On  this 
case,  as  reported  by  Ventris,  we  may  observe  that  it  was  ad- 
mitted merely  as  evidence  of  the  general  reputation  of  the  time, 

plaintiff's  warrant,  and  that  it  was  the  usual  practice  not  to  affix  the  seal  of  the  office 
until  it  appeared  by  a  certificate  of  the  Receiver  General  tiiat  the  money  has  been 
paid,  is  not  evidence  to  shew  at  what  lime  the  seal  was  affixed  to  the  plaintiff's  war- 
rant. Les.  of  Broxcn  v.  Galloroay,  1  Peters'  Hep.  291. 

Quere,  Whether  a  certificate  by  the  accountant  of  the  Navy  Department,  under 
the  seal  of  the  D<*partmeBt,  is  evidence.  J\-Iurray  v.  Wilson,  1  Bimi.  Rep.  531 — 
Am.  En. 

(r)  Transactions  and  objects  which  necessarily  connect  themselves  with,  and  form 
a  part  of  the  general  history  and  geography  of  the  country,  ought  to  be  taken  no- 
tice of,  without  particular  evidence  proving  their  notoriety.  Hart  v.  JSodley,  £Jc. 
Hardin's  Rep.  98. 

No  collection  of  history,  compiled  by  an  individual,  can  be  admitted  in  evidence; 
aliter  if  it  be  shewn  to  be  an  official  document  Harwardv,  £illmfft07i,  4  Ptice'e 
Ex.  Rep.  427.— Am.  Ed. 


NOT  RECORDS.  ^gy 

that  the  mother  of  the  reigning  monarch  was  unkindly  treated chap.  ii.  s,  2. 
by  him,  and  for  the    purpose  of  shewing  the   ground  on  which     Hisiory. 
a  judgment,  evidently  wrong,  proceeded.  — 

The  fact  thus  proved  was  matter  of  public  notoriety,  which,  if 
it  had  happened  just  before  the  time,  the  Judges  in  a  case  within 
their  province,  or  a  jury,  if  it  was  submitted  to  them  as  a  ques- 
tion of  fact,  would  take  judicial  notice  of.  Thus,  Mr.  J.  FoRSTERDisc.onTrea. 
says,  if  a  man  be  indicted  for  treason,  in  adhering  to  the  King's  *°"'*''^' *•'*''• 
enemies,  the  fact,  whether  war  or  no,  is  triable  by  the  jury,  and 
the  public  notoriety  is  sufficient  evidence  of  that  fact. 

But  another  case  is  also  mentioned  in  the  reports  of  Stainer 
V.  Droittvich,  (both  in  Salk.  and  12  Mod.)  which,  if  correctly 
stated,  would  tend  to  admit  such  evidence  to  fix  th6  particular 
dates  of  transactions  not  very  remote  from  the  time  of  trial.  It 
is  cited  in  12  Mod.  by  the  name  of  Neale  v.  Jay,  ^nd  in  Salk.hy 
that  of  Neale  v.  Fry :  in  the  latter  book  it  is  stated  to  have  passed, 
about  twelve  years  antecedent  to  that  time,  and  is  thus  cited 
"  A  deed  was  produced,  said  to  be  made  1  Philip  4'  Mary, 
wherein  all  the  titles  were  given  to  Philip,  which  he  used  after 
the  surrender  of  Charles  the  Fifth.  Now  though  Charles  had  then 
surrendered,  yet  Philip  did  not  take  the  titles  upon  him  till  tliat 
surrender  had  been  received  by  the  council  of  Spain,  which  was 
six  months  after,  so  that  the  deed  must  needs  have  been  forged: 
and,  to  prove  the  time  of  receiving  that  surrender,  chronicles  were 
produced  and  admitted  as  evidence,^'  Mr.  J.  Buller  has  impli- 
citly followed  the  report  in  12  Mod.  citing  this  case  from  it  by  the  Bul.N.P.248. 
name  of  Neale  v.  Fry,  and  I,  in  the  first  edition  of  this  work, 
was  led  into  the  same  error  by  Salk.;  but  upon  looking  farther 
into  this  authority,  it  is  plain  that  the  person  who  cited  the  case 
did  not  correctly  state  it.  Frotn  the  date  and  name  of  one  of 
the  parties,  there  can  be  no  doubt  but  that  the  case  of  3Io ss am  Mossam  v. 
V.  Ivy,  7  St.  Tr.  571,  was  the  case  alluded  to.  That  case  hap-.^^[;  ^  ^'-  '^'■• 
pened  in  Trin.  Term,  1684;  it  was  an  ejectment  on  the  demise 
of  Neale,  and  Lady  Ivy  the  defendant,  setting  up  two  deeds, 
dated  13th  November,  and  22d  of  December,  3  Philip  4'  Mary, 
(not  1  Philip  ^'  Mary,  as  stated  in  Salk.)  the  plaintift' showed, 
by  the  titles  to  several  Acts  of  Parliament,  and  other  records  of 
this  kingdom,  that  even  then  Philip  had  not  assumed  the  titles 
which  were  given  to  him  in  the  deeds  ;  but  it  does  not  appear 
from  the  report  in  the  Slate  Trials,  which,  like  most  others  in 
that  collection,  contains  verbatim  every  thing  which  passed,  that 
the  plaintiff"  even  offered  to  read  any  chonicles  in  evidence.  The 
defendant,  on  the  contrary,  did  offer  such  evidence  to  show  when 
Charles  resigned,  and  it  was  rejected  by  the  Court,  the  Chief  7  St.  Tr.  60i. 


1S8 


PUBLIC  WRITINGS, 


Robertson's 
Charles  5. 
Bk.  11. 


Chap.  II.  s.  2.  Justice  (Jefferys)  saying,  "  Is  a  printed  history,  written  by  I 
Siuveys  and  know  not  who,  evidence  in  a  Court  of  Law  ?"     The  attention 

Inquisitions.  .  .,,  .„..  hi-li 

to  which  such  history  is  entitled,  even  it  it  be  at  all  admissible, 

is  certainly  not  much,  and  no  stronger  instance  can  be  adduced 
of  the  danger  of  relying  on  it,  than  this  of  the  time  when  Philip 
first  assumed  his  title,  for  by  the  laborious  industry  of  Dr.  Ro- 
bertson, we  are  acquainted  with  the  extraordinary  fact,  that 
though  the  date  of  the  instrument,  by  which  Charles  resigned 
his  Imperial  Crown  to  his  son  and  successor,  is  agreed  to  be  the 
25th  of  October,  1555,  yet  the  day,  and  even  the  month  when 
he  actually  invested  Philip  with  the  government,  though  a  public 
and  notorious  act,  is  disputed  by  the  best  and  most  accurate  his- 
torians of  the  time ;  and  that  the  precise  time  when  he  resigned 
his  Spanish  dominions  is  no  less  a  subject  of  controversy  amongst 
them.* 

Surveys,  taken  on  public  occasions,  are  evidence  to  ascertain 
the  rights  of  individuals  not  named  in  them  :  thus  doomsday- 
book,  which  was  a  survey  of  the  King's  lands,  made  in  the  time 
of  William  the  Conqueror,  is  the  only  evidence  to  prove  whe- 
ther a  manor  is  held  in  ancient  demesne,  that  is,  whether  it  was 
part  of  the  soccage  tenure  in  the  hands  of  Edward  the  Confes- 
sor, or  not ;  and  so  high  is  the  credit  of  this  book,  that  the  in- 
spection is  made  by  the  Court.  So  if  a  question  arise  as  to  the 
extent  of  the  ports,  there  lies  in  the  Exchequer  a  particular  sur- 
vey which  ascertains  it ;  and  in  many  instances,  where  a  com- 
mission has  been  confined  to  a  particular  place,  it  has  been  re- 
ceived as  admissible  evidence ;  as  where  a  commission  issued 
out  of  the  Exchequer  in  the  reign  of  Queen  Elizabeth,  directing 
commissioners  to  inquire  whether  a  prior  was  seised  of  certain 
lands,  as  parcel  of  a  manor,  and  whether,  after  the  dissolution 
of  the  priories,  the  Crown  was  seised,  with  directions  to  sum- 
mon a  jury;  and  inquisition  taken  under  it,  and  the  depositions 
of  the  witnesses  were  held  to  be  admissible,  though  not  conclu- 
sive evidence  of  the  fact.     In  like  manner  an  inquisition  taken 

Powell  w.-jj  ^j^g  ijj^g  qC  ^j^g  Commonwealth,  by  order  of  the  then  exist- 

Harcourt.K.B  •        i  f.    i       i        i  •         • 

Sittings  after  ing  government,  to  ascertain  the  extent  of  the  lands  belonging 
to  the  prebend  of  the  moor  of  St.  Paul's,  was  received  against  a 
person  claiming  under  them  as  evidence  of  the  extent  of  their 
rights ;  and  that  taken  under  the  direction  of  the  House  of  Com- 
mons, in  the  year  1730,  as  conclusive  evidence  of  the  tenure 


Hob.  188. 


Gilb.  Law 
Ev.  78. 


Tooker  v, 
Duke  of 
Beaufort, 
I  Burr.  140. 


Doe  dem. 


East.  Term. 
39  Geo.  3 
Append. 


•  See  also  Bume^3  Hist.  vol.  iii.  234,  and  note  (/)  at  the  end  of  that  vol.  for  in- 
stances of  ioitccuracy  in  our  owa  historians. 


NOT  RECORDS.  ^«« 

and  fees  of  the  tlifFeient  offices  noticed  in  it.(l)     So  an  ecclesi-chap.  ii  s.  2. 
astical  suivey  is    not  only  admissible,   but   stron"-  evidence   to  ^" "'"  v* '"i^l 
prove  an   endowment;  and  aided   by  the  perception  of  small 
tithes  (although  not  of  all)  will  give  the  vicar  a  right  to  tithes  of /jv  f^..p,,_j  ^ 
articles  of  modern  introduction  against  the  lessee  of  the  rec- Hewitt.  F<.ake 

N    P   182 

tor.(2)     And  even  w^hen  the  commission  has  been  lost,  the  sur-    "    ' 
vey  taken  under  it  has   been  allowed   as  evidence. (3)     These,  ('^^  ^""'''^*^'- 
and  many  other  cases  of  a  similar  nature,  have  proceeded  on  the '2  Price,  329, 
ground  that  the  Act  being  done  under  the  direction  of  the  nub-  .„,  ,.. 

'  3  )    V  ICHT  01 

lie,  for  the  purpose  of  determining  a  public  question,  is  entitled  K.iii.ut'ut;. 
to  a  degree  of  credit  which  no  act  of  an  individual  is.(s)  1  Wiis'sro 

(s)  A  plot  of  a  survey  in  the  Iiand  writing  of  the  deputy  surveyor,  dated  in  1720, 
not  returned  info  office,  but  found  among  his  papers  after  his  death,  was  allowed  to 
be  given  in  evidence  against  a  regular  warrant  and  survey  posterior  in  time,  settle- 
ment and  possession  having  followed  the  first  survey,  and  the  Land  Office  having 
been  shut  between  1718  and  1732.     Les.  of  Fothergill  v.  Stover,  I  Dall.  Rep.  7. 

A  survey  adopted  by  the  Land  Office-,  though  not  made  by  the  rt  gular  officer, 
may  be  read  in  evidence.     Les.  of  Shields  v.  Buchatian  et  al.  2  Yeates'  Rep.  219. 

The  copy  of  a  warrant  of  survey,  under  the  Surveyor  General's  band,  and  con- 
taining his  directions  to  the  deputy  to  makt  the  survey,  has  always  been  admitted 
in  Pennsylvania.  Les.  ofHetues  v.  JH^Dowell,  I  Dall.  Rep.  5. 

The  office  copy  of  a  survey,  certified  by  the  deputy  suiveyor  general  without  seal, 
(none  being  established  by  law,)  and  the  original  not  in  the  office,  was  allowed  in 
evidence.    J\faster's  les.  v.  Shute,  '2,  Dull.  Rep.  81. 

A  map  of  Germantoivn,  shewing  the  lines  of  lots  and  out  lands,  made  about  1743, 
is  not  proper  evidence  for  the  jury.   Biddle's  les.  v.  Shippen,  1  Dall.  Rep.  19. 

The  list  oi  first  purchasers  was  admitted  to  prove  a  grant  by  William  Penn,  the 
deed  of  which  was  lost.    Hurst  v.  Dippo,  1  Dall.  Rep    20. 

An  abstract  from  a  book  in  the  Surveyor  General's  office,  containing  a  list  of  re- 
turns by  deputy  surveyors,  being  a  charge  against  a  deputv  surve\  or  for  the  land  in 
question,  is  evidence  that  the  survey  was  returned.  Les.  of  Penn  \  Ingham,  C.  C. 
Penn.  Oct.  1811,  JW.  S. 

A  memorandum  made  by  a  deputy  surveyor,  at  the  foot  of  a  survey,  of  a  matter 
not  within  the  line  of  his  duty,  is  not  admissible,  especially  if  the  deputy  suneyor 
has  been  examined  in  person.     Salmon  et  alv.  Ranee,  3  Serg.  £J  R.  Rep.  315. 

An  extract  from  the  Surveyor  General's  books  of  instructions  to  a  deputy  sui"" 
veyor,  is  not  evidence.     Les.of  Gnffith  v.  Evans  et  al.  1  Peters'  Rep.  166 

A  survey  consisting  of  six  sides,  on  three  of  which  there  is  no  mention  of  courseor 
distance,  and  from  which  the  quan'ity  of  land  does  not  appear,  is  not  evidence. 
J\l'  Clemens  v.  Graham,  2  Serff.  &  R.  Hep  460. 

A  connected  plot  of  different  tracts,  made  and  put  together  by  an  officer  of  the 
Land  Office,  and  not  ap|>earing  to  be  a  copy  ot  any  plot  of  record  in  the  office,  is  not 
evidence.    Les.  of  Griffith  v   Tunchouser,  1  Peters'  Rep.  418. 

A  connected  map  of  adjoining  tracts  of  land,  annexed  to  the  deposition  of  a  sur- 
veyor to  shew  that  the  land  in  dispute  is  covered  hy  eldi-r  patents,  may  be  given  in 
evidenc-.    Jones  v.  Bac/ie,  C.  C.  Penn.  Apnl,  1813,  M.  S.  Rep. 

Aci-itificatu  of  the  Surv.yor  Gi  neral  tha'  he  had  issued  a  speci:il  order  to  a  de- 
puty sni\e>  or  to  suivy  lands,  was  alb  wed  under  special  circumstances.  Les  of 
Todd  .  Ockerman  et  al.  1  Yeates^  Rep,  295. 

S 


^3Q  PUBLIC  VVmilNGS, 

Chap.  11.  s, 2.      Inquisitions  taken  before  the  Sheriff,  &c.  on  ordinary  occa- 
Inquisiiions.  gioms,  are  of  very  different  authority  ;  they  are  in  their  nature 

traversable,   and    are    therefore  seldom  admitted  as  evidence 

Bia'ck^W      against  third  persons.     In  one  case,  the  Judges  of  the  Court  of 
King's  Bench  were  equally  divided  on  the  question,  whether  the 
mite*  Coroner's  inquest,  whereby  a  man  was  found  to  be  non  compos 

1  Stia.'es.  mentis,  was  admissible  against  his  executrix  as  evidence  of  his 
insanity  ;  and  it  has  also  been  determined,  that  an  inquisition 
taken  by  the  Sheriff,  to  ascertain  to  whom  goods  seized  by  him, 
under  an  execution  against  Ji.  belonged,  by  which  the  property 
was  found  to  be  in  B.  was  no  evidence  either  for  B.  in  an  action 


A  paper,  in  the  nature  ot  a  certificate,  from  a  former  Surveyor  General,  that  a 
survey  had  been  made,  copied  from  a  book  in  the  office,  was  held  not  admissible, 
but  that  the  book  might  go  to  the  jury.  Morris's  les.  v.  Vanderen,  1  Dall.  Rep.  64, 

A  paper,  certified  by  a  former  Surveyor  General  to  be  a  true  copy  of  the  original 
in  his  office,  purporting  to  be  a  return  of  a  survey,  and  containing  a  draught  made 
in  pursuance  of  a  varrant;  but  the  paper  not  being  signed,  nor  stating  by  whom  or 
■when  made,  a  blank  being  left  for  the  day  and  year,  was  ruled  not  admissible. 
Pemi's  les.  v.  Hartmmi,  2  Dall.  Hep.  230. 

In  real  actions,  a  plan  taken  ex  parte  of  the  land  described  in  the  narr.  cannot 
be  used  as  evidence.  JBearce  v.  Jackson,  i  JYlass.  Hep.  408.  Currish  v.  Beavce 
etal.  11  Do.  193. 

A  map  of  partition  made  nearly  a  hundred  years  ago,  by  virtue  of  an  Act  of  the 
Legislatviie,  being  ex  ^a?'te,  is  inadmissible  to  prove  title.  Jackson  ex  d.  Beck- 
man  et  vx.  v.  Witter,  2  Johns.  Rep,  ISO.  WAt  Jackson  ex  d.  Klock  et  al.  \ . 
Kicntneyer,  13  Do.  367. 

Sharp's  book  of  surveys  has  always  been  held  admissible  evidence  in  deducing  ti- 
tles un'ler  thi'  WesZ  Jerse?/ proprietors.  Denn  v.Pondet  cl.  I  Coxe's  Rep.  378. 
Vide  Jackso7i  v.  Vandyke,  ibid.  28. 

The  draft  of  a  survey  found  in  the  office  of  the  surveyor  of  the  district,  purport- 
ing to  have  been  made  by  J.  U.  for  the  proper  deputy,  a  survey  returned  thereon  by 
the  Surveyor  General,  and  a  patent  issued  in  pursuance  of  it,  were  held  to  be  ad- 
missible. Burdet  al.  v.  Seabold,  6  Serg.  &  R.  Rep.  137, 

The  copy  of  a  warrant,  not  under  seal,  sent  by  the  Surveyor  General  to  the  de- 
puty surveyor  of  the  district  with  an  order  to  execute  it,  is  evidence.  J\Iotz  \. 
Bolard,  ibid.  210, 

Copies  of  ancient  proprietary  grants  are  evidence,  without  proving  the  meeting 
legal  at  which  the)  were  granted.     Pitts  v.  Temple,  2  JMass.  Rep.  538. 

The  return  of  a  deputy  surveyor,  is  merely  prima  facie  evidence  of  the  truth  of 
the  matter  returned.  Les.  of  Eddy  v.  Faulkner, 3  Teates'  Rep.  5^0. itiEr.  1  Bimi. 
Rep.  188. 

A  certificate  of  the  survey  of  land,  without  a  patent,  is  no  evidence  of  title  to  sup- 
port an  ejectment.  Se^uard  v.  Hicks,  I  Har.  &  Mullen.  Rep.  22.  Sollers  v.  Boiueii . 
ibid.  193.     Vide  Young  v.  Haivkins,  ibid.  148. 

A  copy  of  a  certificate  of  survey,  lodged  in  the  land  office,  is  good  eyidence, 
Thornton  v.  Edwards,  ibid.  158, 

A  copy  of  a  patent,  either  from  the  records  of  the  Register's  office,  or  from  the 
County  Court,  is  good  evidence  of  title  as  the  original  would  be.  Lee  v.  Tapscot!, 
2  Wash.  Rep.  276.  Vide  SxUton  v.  Blunt,  2  Hay^u.  Rep.  343.  Vide  Young  r.  Baie^ 
kins,  ibid.  148.— Am.  Ed. 


?rOT  RECORDS.  |^| 

brought  by  him  against  the  Sheriff,(l)  or  for  the  Sheriff  in  an  ac-  cimp.  ii.  s.  2. 
tion  for  a  false  return  of  the  execution.(2)  (/)  **gS.?^" 


The  register  kept  in  churches  oi births,  marriages  and  burials, 


is  also  evidence,(t<)  and  in  all  civil  cases,  except  actions  for  cri-  (i)  Laikow  t 
minal  conversation,  a  marriage  may  be  proved  by  reputation;(3}  pj""^'"' /^  *^- 
but  in  this  case,  and  on  indictments  for  bigamy,  either  some  per- 
son present  at  the  marriage  must  be  called,  or  the  original  '"sgis- ^p^lj^'g'*^'^  ^ 
ter,  or  an  examined  copy  of  it  produced,(a:)  *  in  which  case  the  S  175. 

(3)  Morris  v. 

Miller, 

{t)  An  inquisition  made  by  a  Sheriff's  jury,  to  ascertain  whether  the  property  in  4  Burr.  2057. 
goods  taken  on  aji.fa.  is  in  the  defendant  or  not,  if  found  not  to  be  in  hinn,  is  a  jus- 
tification to  the  Sheriff  for  returning  nulla  bona,  and  a  concbtsive  defence  in  an  ac- 
tion against  him  for  a.  false  retw?i;  unless  it  be  shewn  thiit  he  did  not  act  with  good 
faith.  Bayleii  v.  Bates,  8  Joluis.  Rep.  143.  Sed  vide  contra  Pearson  v.  Fisher, 
1  Car.  La-ui.  Repos.  460. 

But  where  goofis  taken  on  an  execution  against  B.  were  claimed  by  .^.  as  his  pro- 
perty, and  the  officer  summoned  a  jury  of  inquiry,  as  to  the  claim,  it  was  held  that 
the  inquisition  was  no  justification  in  an  action  of  trespass  by  A.  but  went  only  in 
mitigation  of  damages.    Toivnsetid  v.  Phillips,  10  Johns.  Rep.  98.  -Am.  Eo. 

(7i)  A  copy  of  the  register  of  the  births  and  dnaths  of  the  society  of  Quakers  in 
.England,  proved  before  the  Lord  Mtiyo-  of  London,  admitted  in  evidence  to  prove 
the  death  of  a  person.  Les.  of  Hyam  v.  Edwards,  1  Dall.  Rep.  2. 

So  the  registry  of  any  religious  society  in  this  State,  is  evidence  by  Act  of  Assera- 
bly,  but  it  must  be  proved  as  at  comMion  law.  A  certified  copy  under  seal  is  not 
evidence.  Stoever  v.  Les.  of  Whitman,  6  Bimi.  Rep.  41(5. 

In  Copps  V.  Pollen,  P/iillimore's  Rep.  145,  it  was  held,  that  an  erroneous  entry 
in  the  register,  did  not  vitiate  the  marriage. 

And  as  to  the  register  of  a  dissenting  chapel,  vide  ^.'Ydwliam  v.  Raithby,  ibid.  315. 

A  certificate  of  a  justice  of  the  peace,  is  not  evidence  of  a  legal  marriage,  unless 
it  state  they  were  joined  together  by  him,  in  legal  marriage.  Mangxie  v.  J\langue, 
1  Mass.  Rep.  240. 

The  record  of  a  b.iptism,  made  by  the  minister  of  the  parish,  who  was  dead,  was 
received  in  evidence.  Huntley  v.  Comstock,  2  RooVs  Rep.  99. 

The  copy  of  a  register  kept  in  the  records  of  a  town,  is  evidence  of  pedigree  and 
heirship,  Jackson  ex.  d.  JMiner  v.  Boneham,  15  Johns.  Rep.  226. — Am.  Ed. 

(ar)  On  an  indictment  for  adultery,  the  record  of  the  marriage  is  not  necessary, 
but  it  may  be  proved  by  witnesses.  Indeed,  witnesses  are  necessary  to  prove  the 
identity  of  the  parties.  Commoniuealth  \.  JVorcross,^  J\lass.  Rep.  492.  Common' 
wealth  V.  Barbarick,  15  Do.  163. 

In  prosecutions  for  bigamy,  and  in  actions  for  C7'im.  con.  an  actual  marriage  must 
be  proved.  The  People  v.  Humphreys,  7  Johns.  Rep.  314.  Baker  v.  Metzler,  Jinth. 
.,V.  P193.  and  195.  ?J.  a. 

In  an  action  for  breach  of  promise  of  marriage,  the  declarations  of  the  plaintiff 
that  she  had  promised  to  marry  the  defendant,  made  long  before  the  suit  brought, 

*  In  May  v.  May,  2  Stra.  1073,  on  a  question  of  legitimacy,  it  appeared  that  a 
general  register-book  was  kept  in  the  parish,  into  which  the  entries  of  baptism  were 
made  every  three  mouths  from  a  day-book  into  which  they  were  made  at  the  time. 
In  the  day-book  were  put  the  letters  B  B,  which  were  said  to  signify  base  born ;  but 
these  were  not  inserted  in  the  register-book.  Pkobyn  and  Li:e,  Justices,  were  of 
opinion,  that  the  register-book,  being  the  public  book,  was  to  be  coosidered  a%the 


13? 


PUBLIC  WRITINGS, 


Chap.  II.  s.  2.  parties  may  be  identified  by  any  one  acquainted  with  them,  whe- 
^"isleif "     ^'^^'"  pi'esent  at  the  marriage  or  not.    But  the  books  of  the  Fleet, 


Bin  T).  Barrow  3,.^  good  evidence  for   heplainiiff  to  shew  the  mutuality  of  the  contract.  Peppinger 
Dougl.  162.     y   j^o^y^  I  ualst.  Rep.  384. 

Co-habitation  and  having  chiidien,  is  evidence  of  marriage.  Telts  et  iix.  v.  Foster 
et  al.  Tmjl.  Rep  121.  S.  C  2  Hayw.  Rep.  102.  Et  vide  Pnrcell  v.  Purcell,  4  H. 
&  Mimf.  Rep.  .i07.  Fenton  v.  Reed,  4  Johns.  Rep.  52.  J^'e^vbwyport  v.  Boothbay, 
^  Mun"  JHfj'-  •il'i-  Cockrilletal  v.  Calhoun,  \  jYoU  S^  J\f  Cord's  Rep.  285.  .Men 
V.  JVa//  etal.  2  Z>o  Hi.  Jackson  ex.  d.  Van  Bnskirk  v.  Claw,  18  Johns.  Rep.  346, 
i?a/cfr  V.  Metzler,  Anth.  JV.  P.  193.  and  195  7i.  a. 

In  Pennsyhanta,  marriiige  is  a  civil  contract,  which  may  be  completed  by  any 
words  \u  the  present  tenst ,  without  regard  to  torra.  Hantz  v.  Sealy,  6  Rinn.  Rep. 
405.  So  in  Kentucky,  Dimmresly  \ .  Fishly, 3  Marshall's  Rep.  370. 

In  JVerv  York,  a  contract  of  marriage  made  per  zerka  de presenti,  amounts  to  an 
actual  marriage,  and  is  as  valid  as  if  made  m  facie  ecclesiiS.  Fenton  v.  Reed,  4  Johns. 
Rep.  52. 

And  in  ordinarj  cases,  an  actual  marriage  may  be  inferred  from  cohabitation,  ac- 
knowledgment, &c.  n(  tlie  parties,  ibid. 

In  the  case  of  Cunninghams  v.  Ciimunghains,  in  the  House  of  Lords,  on  an  ap- 
peal from  the  Court  of  Sessions  in  Scotland,  2  Dow.  Rep.  482,  Lords  Eldes  and 
Redesdalk  hi  Id,  that  in  cases  of  co-habitation,  the  presumption  was  in  favour  of  its 
legality,  but  where  it  was  known  to  have  been  illicit  in  its  origin,  that  presumption 
could  not  be  made. 

In  the  case  of  J\tAdum  v  Walker,  in  the  House  of  Lords,  on  an  appeal  from  the 
same  Court,  I  Dow's  Rep.  148,  Lord  Eldes  observes,  thai  the  canon  law  is  the 
basis  of  the  marriage  law  all  over  Europe,  and  by  the  law  oi  Scotland,  assent  alone 
to  a  contract  of  marriage,  de  presenti,  is  sufficient  to  render  the  marriage  binding, 
without  being  followed  by  copiila,  or  other  act  to  carry  it  into  effect. 

In  Chesseldine's  les.  v.  Bre~.ver,l  Har.  &  J\rHen.  Rep.  152,  it  was  decided  that  co- 
habitation, copulation,  and  agreement  to  become  man  and  wife,  was  sufficient  to  le- 
gitimate  issue. 

In  South  Carolina,  proof  that  two  persons  lived  together  as  man  and  wife,  will 
be  conclusive  if  not  rebutted.  Allen  v.  Hall,  2  JVott  &  M-  Cordis  Rep.  114. — Am. 
Ep. 

orii;inal  entry  from  which  evidence  was  to  be  given,  ami  that  it  could  not  be  con- 
trolled or  altered  by  any  thing  appearing  in  the  day-book.  Page  J.  was  of  contrary 
opinion. 

The  following  case  was  decided  upon  the  same  principles  : 

Rex  V.  Head,  Worcester  Spr.  Assiz.  1762,  cor.  Noel  J.  J\l.  S.  In  an  informa- 
tion for  bribery ,  the  prosecutor,  to  [irove  the  party  a  freeman  of  Evesham,  produced 
upon  a  2*.  stamp  a  copy  of  a  loose  paper  I'pcjii  a  file,  which  the  witness  said  was  also 
on  a  2s.  stamp,  to  this  effect :  "  Borough  of  Evesham,  A.  B.  admitted  to  his  free- 
dom such  a  day."  It  appeared  that  there  was  a  book,  in  which  the  acts  of  the  cor- 
poration Were  kept,  and  where  there  was  an  entry  more  at  large  of  the  freeman's 
admission,  and  which  was  made  when  the  party  was  originally  admitted  ;  but  this 
was  not  on  stamp  in  the  book  ;  ami  it  was  otijected,  that  this  being  the  original  book 
of  the  corpf  ration,  a  copy  ot  this  .ihould  hii\e  been  produced  ;  but  i(  appearing  that 
such  e>.trv  in  the  bnok  was  lu  vei-  upon  stamps,  but  the  short  entiies  were  filed  upon 
Stamps  an'l  kept  amongst  the  eor|)iiia!i''n  I'lipers,  Noel  J.  said,  that  this  entry  being 
the  only  effectuul  act,  as  ha'i'".'  that  whxh  the  law  requires,  viz  the  proper  stamp, 
must  be  looked  upo-  •  i  the  >.  oper  and  original  act  of  the  corporation,  and  there- 
fore a  copy  of  it  was  good  evidence. 


NOT  RECORDS.  |gg 

however  corroborated  by  other  circumstances,  are  not,  in  any  chap.  II.  s,  2. 
case,  received  as  evidence  of  a   marriage ;  not  because  a  mar-     Rolls  of 
riage  celebrated  there  was  not  good,  for  such  it  clearly  was  be-         ' 
fore  the  marriage  Act ;  but  because  the  manner  in^  which  those  3;,,^^  y^^^, 
marriages  were  celebrated,  and  the  conduct  of  the  persons  who,  low,  Dougi. 
without  any  legal  authority,  assumed   the  power  of  registering 
tlieni,  have  thrown  such  an  odium  on  those  books,  as  to  take  from 
them  even  the  authority  of  a  private  memorandum.* 

The  rolls  of  Courts  baron  are  also  received  to  prove  the  ad-Bul,N.P.24r 
missions,  &c.  of  tenants,  and  either  an  examined  copy,  or  one 
signed* by  the  steward,  may  be  read  ;  so  also  rolls  which   con-Doedern.  Ma- 

son  T^   Ivlcison 

tain  entries  of  descents,  &c.  are  evidence  between  the  tenants  to  3  \v,is.  53.    ' 
prove  the  customary  course  of  descent  within  the  manor;  and P^^ '^em.Bee- 
even  an  entry  on  an  ancient  roll  of  a  finding  by  the  homage  what  5  T.  Rep.  26.' 
the  customs  were,  though  not  accompanied  by  any  particular  in- 
stance, or  supported  by  other  evidence,  is  itself  admissible  evi- 
dence to  prove  the  custom  ;  for  this  not  being  the  claim  of  a  pri- 
vate individual,  but  as  it  were  the  lex  loci,  tradition  and  received 
opinion,  is  evidence  of  it.     On  the  same  principle  a  customary  Den  dem. 
of  the  manor  of  great  antiquity,  though  not  properly  a  Courtgp°jjy|''"'J' 
roll,  nor  signed  by  any  person,  but  delivered  down  with  the  rolls  Rep.  466. 
from  steward  to  steward,  has  been  deemed  good  evidence ;  and 
where  a  parchment  writing,  dated  about  a  century  since,  and  chapman  t'. 
purporting  to  be  signed  by  many  persons  copyholders  of  the  ma-  il?E'^".'in 
nor,  stated,  that  the  commoners  had  an  unlimited  right,  which 
having  been  found  inconvenient,  they  had  agreed  to  stock  the 
common  in  a  certain  restricted  manner ;  such  instrument  was 
deemed  to  be  evidence  of  the  reputation  of  the  general  right, 
although  not  proved  to  have  been  signed  by  a  majority  of  the  co- 
pyholders of  the  manor,  nor  that  the  person  against  whom  it  was 
produced,  held  the  copyhold  tenement  of  any  one  of  those  who 
had  signed  it. 

Similar  to  Court  rolls  and  customaries,  are  ancient  terriers  or 
surveys  of  a  parish  or  manor,  which  are  either  ecclesiastical  or 
temporal.     The  ecclesiastical  terriers  are  surveys  made  by  vir- 
tue of  the  87th  canon,  and  are  thereby  ordered  to  be  kept  in  the 
Bishop's  registry;  and  Godolphin  adds,(l)  that  it  may  be  conve-.(i)  Reperto- 
nient  to  have  a  copy  exemplified,  and  kept  in  the  church  chest ; ^|||,7  (p"°nj^ 
wherefore,  it  was  in  one  case(2)  holden,  tliat  a  paper  purporting  i2- 
— _ (2)  Atkins  v. 

•  So  ruled  by  Lord  Kenton  in  Reed  v.  Passer,  Peake's  Cas.  231 ;  Esp.  213,^  Anstr'  3SC 
S.  C. ;  and  by  Lord  C.  J.  De  Grey  in  Harvard  v.  BurtoJiwood,  (J.  B.  Sittings  at 
JFestmijister  &itev  Tv'in.  T.  1776;  and  previously  by  LoikI  Hardwickk  and  Lord 
C.  J.  Lee  :  but  in  Doe  dent.  Passhiglmm  v.  Lloyd,  S/irewsb.  Summer  Assiz.  1794, 
Mr.  J,  Heath  admitted  them  in  evidence.    See  Cooke  v.  Lh'jd,  .Ippendix. 


134!  PUBLIC  WRITING?, 

Chap.ii.  s.  2.  to  be  a  terrier,  found  in  the  charter  chest  of  Trinity  College, 
Terriers.     Cambridge,  (who  were  landholders  in  the  parish)   was  no  evi- 

"""'"'""  dence  to  disprove  a  modus  ;  and  indeed  it  may  be  laid  down  as 
a  general  rule,  that  all  ancient  documents,  the  authenticity  of 
which  are  not  proved  by  any  extrinsic  evidence,  should  appear 
to  come  out  of  the  proper  regular  custody ;  thus,  an  instrument 
purporting  to  be  an  endowment  without  the  seal  of  the  Bishop, 
and  another  purporting  to  be  an  inspeximus  of  the  first  under 
his  seal;  coming  out  of  the  hands  of  a  private  individual  entirely 

(1)  Potts  ID.  unconnected  with  them  ;(1)  and  in  like  manner  a  grant  to  an. 
Gwili.  1450.  abbey,  contained  in  a  manuscript  intituled   Secreium  Ahbatis, 

,  ,     and  a  similar  instrument  entered  in  what  purported  to  be  a  char- 

(2)  Mechf  1  r.  .  .  ,       ,  ,       ,  ,  , 

Roberts,  cited  talary  or  a  priory,  were  rejected,  though  the  one  was  brought 
3  Taunt.  91.  fj.Qj^  ^j^g  Bodhian  Library, (2)  and  the  other  from  the  Cottonian 
(3)Swinner-  MSS.  in  the  British  Museum,{5)  those  places  being  merely  the 
quis^of^S^af-  depositaries  of  curious  antiquities,  and  not  the  place  in  whicK 
tord,  ibid.       those  to  vvhom  the  instruments  had  belonged  had  deposited  them 

(4)  B.iUen  t^.  ^^  evidence  of  their  rights.  But  where  a  similar  chartalary  was 
Mitchell,  2     produced  from  the  documents  of  a  person  who  had  become  the 

Price    399 

'       ■    owner  of  part  of  the  estates  of  the  abbey  (although  not  of  those 

(5)  Miller  r>.  jn  question)  it  was  held  by  the  Court  of  Exchequer  (Wood,  Ba- 
2Anst!387.    ron,  Dissent.)  to   be  admissible  ;(4)  and,  as  against  one  of  the^ 

Ti  pprebendaries  of  Litchfield,  a  terrier  found  in  the  registry  of  the 

Evidence,' 45.  dean  and  chapter  oi  Litchfield,  was  also  held  to  be  sufficient  evi  - 
^."^e     dence.(5) 

Eari'r).  Lewis,  A  terrier  is  said  to  be  always  strong  evidence  against  the  par- 
Illinesworth*  son,  and  this  though  not  signed  by  the  incumbent  of  the  time; 
T).  Leigh,  4     but  for  him  it  is  never  admitted,  unless  signed  by  the  church- 

Gwill    1618  ^  J 

wardens  ;  and  if  they  are  of  his  nomination,  by  some  of  the  sub- 
stantial inhabitants  of  the  parish  also.(6) 
Maps.         Jincient  maps  have  generally  been  classed  under  this  head  of 
Yates  t;.  VL^r- public  Writings  not  of  record,  though  perhaps  they  would  more 
1702.  Glib.  ^   properly  have  been  considered  as  private  instruments;  however. 
Law  Ev.  78.    as  these  are  in  some  degree  analogous  to  terriers,  I  shall  here 
Jennings,  L(l.  observe  that  an  ancient  map  will  be  received  as  evidence  where 
Rajm.  734.    j^  has  accompanied  possession,  and  agreed  with  the  boundaries 
as  adjusted  by  ancient  purchases.     If  two  manors  are  in  the 
hands  of  the  same  person,  and  a  map  is  made  by  him,  and  after- 
wards one  of  the  manors  is  conveyed  to  another  person ;  and 
then,  at  a  distant  time,  disputes  arise  as  to  the  boundaries,  the 
Ibid.  iStra,    map  so  taken  will  be  evidence  ;  but  if  the  person  under  whose 
'■    ■    ■        direction  the  map  was  taken,  was  possessed  of  only  one  manor. 
Pollard  V.      or  a  Lord  describes  the  boundaries  of  his  waste,  or  the  church- 
N.°P.' ]  s^^''^  wardens  cause  a  copper  plate  map  to  be  made,  wherein  they 


NOT  RECORDS.  ^os 

describe  land  which  an  individual  claims  to  be  a  public  highway,  chap.  ii.  s.  2. 
in  any  of  these  cases,  the  map  so  taken  is  uot  evidence  against ^''i'='l  V.'"^"®^ 
the  rights  of  persons  not  parties  to  the  making  ot  it.(?/)  _ 

The  Pope's  license,  without  the  King's,  has  been  held  good  evi- 
dence of  an  impropriation,  because  anciently,  the  Pope  was 
taken  for  the  supreme  head  of  the  church,  and  therefore  was 
holden  to  have  the  disposition  of  all  spiritual  benefices,  with  the  Cope  u  Bed 
concurrence  of  the  patron,  without  any  regard  of  the  prince  of  ^'^^  '  "  "^' 
the  country,  and  these  ancient  matters  must  be  judged  according 
to  the  error  of  the  times  in  which  they  were  transacted. 

So  also  the  Pope's  hull  is  evidence,  upon  a  special  prescrip- 
tion to  be  discharged  of  tithe,  where  it  is  contended  that  the  Palm.  38, 
lands  belonged  to  a  particular  monastery,  and  were  discharged 
at  the  time  of  the  dissolution,  for  then  they  continue  discharged 
by  the  Act  of  Parliament  j  but  it  is  no  evidence  to  prove  a  ge- 
neral prescription,  which  can  only  be, from  time  immemorial, 
because  it  shews  the  commencement  of  the  custom.     An  exem-  Sir  T,  Read's 
plification  under  the  Bishop's  seal,  is  good  evidence  of  the  Pope's  Hard*^'ii8 
bull. 

Corporation  Books,  concerning  the  public  government  of  a  Corporation 
city  or  town,  when  publicly  kept,  and  the  entries  made  by  a   ° 
proper  officer,  are  received  as  evidence  of  the  facts  contained  ^^^  '"'■  ^1°' 
in  them,  so  far  as  those  facts  go  to  ascertain  the  rights  of  the  se-  stra.  93, 
veral  members  of  the  corporation  inter  se  ;  but  where  the  corpo- 
ration is  disputing  with  a  third  person,  as  in  the  case  of  tolls  for 
instance,  entries  of  other  persons  having  formerly  submitted  to 
the  demand,  however  ancient  such  entries  may  be,  will  be  no  evi- 
dence unless  accompanied  with  a  charge  upon  the  persons  mak-  Marriage  v. 
ing  them,  or  such  other  circumstances  as  are  deemed  necessary  gg^^^  &  Aid. 
to  give  authenticity  to  similar  entries  in  the  book  of  an  indivi-  '^2. 
dual.     An  old  agreement  being  in  the  Bodleian  Library.,  whence  Downes  v. 

the  Oxford  Statutes  prohibit  its  removal,  a  copy  was  in  one^o';*^™'"'^ 
•      J  •  -J  u   ^    ■  1    ^u   4.      u-   u  ■     ■      -^    Bunb.  189. 

case  received  in  evidence  ;  but,  in  general,  that  which  is  in  its 

nature  a  private  instrument,  will  not,  by  belonging  to  a  public 

body,  and  remaining  in  their  custody  for  a  number  of  years,  gain 

that  degree  of  credit,  which  entitles  a  copy  of  it  to  be  read  in 

(y)  A  map  is  good  evidence  against  parties  to  it.  Jackson  les.  of  Tenbroke  v. 
(  andyke,  1  Coxe's  Rep.  28. 

An  agreement  of  parties  that  a  certain  map  should  be  filed  in  the  Surveyor  Gene- 
ral's office,  does  not  entitle  it  to  be  admitted  in  evidence  as  a  record.  Dean  ex.  d. 
Mickham  v.Pissant  et  al.  1  Coxe's  Rep.  220. 

As  to  a  plot  attached  to  a  survey,  vide  Hickman  V.  Boffman,  Hard.  Rep.  359« 
Vide  ante  129,  n.s.    Am.  Ed. 


136  PUBLIC  WRITINGS, 

Chap.  n.  s.  2.  evidence  ;  and  therefore  where  a  letter,  fifty  years  old,  was  found 
Bank  Books.  -^^  ^  corporation  cliest,  the  Court  held  that  the  original  must  be 

~  produced .(z) 
1  Stra.  W. "'     Public  books  of  another  description  have,  of  late  years,  come 
into  use,  which,  though  in  one  point  of  view,  they  do  not  in  the- 
least  resemble  records,  but  are  rather  memoranda  of  the  con- 
tracts of  individuals  ;  yet,  as  they  concern  the  public  in  general, 
and  are  necessarily  confined  to  one  place.  Judges  have,  by  ana- 
logy to  the  case  of  records,  permitted  copies  to  be  read  in  evi- 
Bretton  v.      dence.     Thus  it  has  been  held,  that  to  prove  a  transfer  of  stock 
N°'p'  30*''^'  ^"^  *^^  public  funds,  copies  from  the  Bank  books  are  good  evi- 
Vide  post.      dence  ;  and  the  like  seems  to  be  the  case   with  respect  to  the 
Vide  Doug,    books  of  the  East  India  Company   (though  this   point  has  not 
593,  note.      been  expressly  decided,)  far  they  are  equally  within  the  prin- 
3  Salk.  154.    ciple,  that  "  wherever  an  original  is  of  a  public  nature,  and  would 

(z)  Coq)oration  books  are  evidence  of  the  acts  of  the  corporation,  bat  it  must 
appear  that  they  are  kept  ;  s  siicli  by  the  proper  offic-r,  or  some  person  authorised 
to  make  entries  in  his  necessary  absence.  Highland  Tump.  Co.  v.  JM'Kean,  10 
Johjis.  Rep.  154. 

Evidence  made  by  a  clerk  in  the  books  of  a  corporation,  by  the  direction  of  the 
trustees,  are  not  evidence  in  a' cause  in  which  they  are  interested.  Jackson  ex.  d. 
Donally  v.  IVuhh,  3  Johns.  Rep.  226. 

The  books  of  a  corporation,  established  for  public  purposes,  are  evidence  of  its 
acts  and  proceedings.   Owings  v.  Speed,  5  IVheai.  Rep.  420. 

The  minutes  ol  the  commissioners  of  property,  allowed  to  be  given  in  CTidence. 
Les.  of  Weston  v.  Stammers,  1  Hall.  Rep.  2. 

The  acts  of  freeholders  at  meetings  in  Connecticut,  according  to  their  laws,  are 
not  admissible  on  a  trial  of  title  to  land.  Humphrey  v.  Pison,  I  Root's  Rep.  259. 
Aiistin  V.  Hanchet,  ibid.  314. 

Books  of  a  corporation  are  evidence  in  disputes  between  members  of  the  corpo- 
i*ation,  but  not  against  strangers.  Common-wealth  v.  Woelper  et  al.  3  Serg.  ^  R, 
Rep.  29. 

An  original  corporation  book,  though  not  under  the  corporation  seal,  was  ruled 
to  be  good  evidence  in  an  action  by  the  corporation  against  one  of  its  members. 
Fleming  et  al.  v.  Wallace,  2  Veates'  Rep.  120. 

In  Virginia,  the  treasury  books  are  conclusive  evidence  of  the  balances  on  hand 
at  any  given  time,  both  against  the  treasurer  and  his  sureties,  without  being  pleaded 
as  an  estoppel.   Common-wealth  v.  Preston._  Gihner^s  Rep.  235. 

Tbe  secr<-tary  of  a  banking  company  is  not  a  certifying  officer ;  his  copies,  of 
the  vote  of  the  stockholders,  must  be  sworn  to.  The  Hal.  &  Augusta  Bank  \, 
Hamlin  et  al.  14  Mass.  Rep.  178. 

A  copy  of  an  entry  in  a  book  kept  by  a  corporation,  is  not  authenticated  by  the 
seal  of  the  corporation  ;  an  examined  copy  must  be  produced.  Stoever  v.  ics.  of 
Whitman,  6  Binn.  Rep.  41 6. 

The  book  of  a  messenger  of  a  bank,  who  was  dead,  in  which,  in  the  course  of  his 
duty,  he  entered  memoranda  of  demands  and  notices  to  the  promisees  and  endor- 
sers upon  notes  left  in  the  bank  fnr  collection,  was  received  as  evidence  of  a  demand 
on  the  maker,  and  notice  to  the  defendant,  as  endorser  of  a  note  SO  left  for  collec- 
tion. Welsh  Y.  Barrett,  15  Mass.  Rep.  380.— Am.  Ed. 


INSPECTION  OF  PUBLIC  WRITINGS.  ^gy 

"  be  evidence  if  produced,  an  immediate  sworn  copy  thereof  chap.  ii.  s.  2. 
"  is  evidence."(a)  ^^"^  l^ooks. 

(a)  A  copy  of  an  orfli'p  by  which  money  has  been  drawn  from  tlie  treasury  of  the 
Conimonwt'aUh,  though  sworn  to  be  a  true  copj  by  the  ircasurer,  will  not  bi-  ad- 
mitted as  evidence,  but  th<f  original  order  must  be  produced.  Torreij  v.  Fuller, 
1  Mass.  Rep.  524.— Am.  En. 


SECTION  III. 


Of  the  Inspection  of  Public  Writings. 

Though  all  the  documents  mentioned  in  the  two  preceding  Chap.  ii.  s.s. 
sections  are  of  a  public  nature,  yet  it  should  be  observed  they  — — _^__. 
are  not  for  all  purposes  equally  open  to  the  public. 

The  proceedings  of  Courts  of  Justice  may,  it  should  seem,  be 
inspected  by  every  person  who  is  interested  in  them.*(l)     Co- (i)  Herbert 
pies  from  the  books  o{  public  offices  may  also  be  called  for  by  the  ^'^y^i^  297^' 
persons  interested,  unless  where  public  policy  requires  that  the 
contents  of  them  should  not  be  disclosed.(2)  (b).     Thus,  access  (2)  Wilson  r-. 
has  been  granted  to  the  books  of  the  commissioners  for  settling  ^  y^^a*i242, 

Edwards  v. 

Vesiiy,  Cas. 
•  III  the  cases  cited.  No.  1,  leave  was  given  to  inspect  the  books  of  the  Quarter  temp  llardw, 
Se8sions,theCourt  of  Conscience,  and  the  Commissioners  of  Lieutenancy,  as  to  pro-  '■^''• 
ceedings  against  the  party  .n  thi-  action  ;  and  where  an  action  for  false  imprison- 
meni  was  brought  against  the  informer,  the  justice  of  the  peace,  who  convicted  the 
plai  'iff,  was  ordered  to  give  acopy  of  the  iiitormation  (^Welch  v  Richards,  Barnes, 
468  ;)  but  in  Groinvolt  v.  Barrel,  1  Lord  Raym.  252,  and  Abeny  v.  Dickenso?i, 
Say.  250,  where  actions  were  brought  for  false  imprisonment  in  the  ex^cution  of 
the  sentetice  of  the  College  of  Physicians  in  the  one  case  ;  and  of  the  order  of  the 
comniissioners  of  hackney  coaches  in  the  other;  the  Court  !••  fused  to  grant  rult-s  for 
the  plaintiff  to  inspect  their  books,  on  the  ground  that  ihe  persons  in  whose  custody 
they  were,  were  no  parties  to  the  suit.  So  where  the  president  of  a  military  Court 
of  Inquiry  was  sued  by  an  officer,  on  whose  conduct  he  hwd  made  a  report,  as  for  a 
libel  contained  in  such  report,  it  was  held  that  the  report  was  a  privileged  commu- 
nication, and  could  not  be  read  in  evidence  either  directly  or  by  an  office  copy. 
Home  V.  Ld.  C.  F.  Bentinch,  2  Brod.  &  Bing.  180. 

(6)  It  seems  that  the  boeks  of  the  Land  Office  and  of  the  Board  of  Property,  are 
records.  Reamv    Commoniveulth,3  Serg  i3  R.  Rep.l^l. 

Minutes  of  the  Commissioners  of  Property  were  allowed  to  be  given  in  evidence. 
Les.  of  Westons  v.  Stammers,  1  Ball.  Rep.  2. 

The  minutes  of  the    Board  of  Property  are  not  evidence  of  any  fact  but  wh.<»t 
passes  immediately  before  it.  De(d  et  al.  v.  M'  Cormich,  3  Serg.  6?  R.  Rep.  343. 
Et  vide  Carothers  et  al.  v.  Lea.  ofDuimins^,  ibid,  384.— Am,  Ed. 
T 


j^gg  IXSPECTION  Ot 

Chap.  11.  8. 3.  the  debts  of  the  army,  at  the  prayer   of  an  officers  widow  ;(1) 

. but  refused  to  the  books  containini^  an  account  of  the  revenue, 

(1)  Moo>!y  fyi-  the  purpose  of  settling  a  mere  idle  wager  as  to  the  amount 
iSua'soi'  of  the  duties. ^2)  In  like  manner,  the  books  and  muniments  ot 
a  corporation  containing  the  rights  of  its  members  are  open  to  all 
Ti.  BfLn/,  ° '  of  them  ;  and  if,  when  a  suit  is  depending,  application  be  made 
ST.Rei).  616.  ^Q  ^j^g  person  who  has  the  custody  of  them,  and  he  refuses  an  in- 

(3)  R'x  V.  spection,  the  Court  in  whicli  it  is  so  depending,  will  compel  him 
H.iiisier,       ^^j  „jyg  it/S)     But  wlien  a  dispute  takes  place  between  the  cor- 

Crts.  temp.  »    .  ^    '  •     ,.    •  1      ,        1        •  .  r  ■  1 

H.'  dw.245.  poration  and  an  individual,  who  is  no  member  oi  it,  as  when  a 
^'■^"■^^'^■^1^'"' corporation  sues  a  stranger  for  tolls,(4)  the  corporation  being  as 
raen  i:,  New-  to  him  tlio  Same  as  a  private  person,  a  Court  of  Justice  will  not 
Tv'ne"'^'°"  grant  an  inspection  of  the  books  in  order  to  enable  the  party  to 
2Stia.  1223    find  evidence  against  the  body   with  whom  he  is  contending; 

(4)  M^vor  of  any  more  than  they  would  to  inspect  private  title  deeds,  if  the 
Southarapton  dispute  existed  between  two  individuals. 

8T.  Rep. 590.     The  Same  principle  applies  to  the  Cowt  rolls  of  a  manor;  as 
,  „  . .         between  the  Lord  and  the  tenants,  or  between  the  tenants  them- 

(5)  Baldwyn  •        i        •    i  r   i 

■V.  Trudge,     selves,  they  ascertain  the  rights  of  the  respective  parties,  and  are 
Barnes,  237.   therefore  open  to  all ;  so  that  if  a  Lord  claim  an  amercement,(53 
(G)  Hobson  V.  or  two  tenants  are  disputing  about  the  custom  of  a  manor,(6)  the 
ai  er,  ii.  .  ig^g^fjj-  j^^g^  j,^  either  case,  a  right  to  inspect,  and  use  as  evidence, 
the  rolls  relating  to  his  title  ;  and,  if  the  Lord  refuse  the  in- 
spection, the  Court  will  make  a  rule  on  his  steward  for  that  pur- 
(7)  Hobson  t;.  pose  ;(7)  and  every  man  who  has  a  prima  facie  title  to  k  copy- 
Parker,  hold,  is  entitled,  though  no  cause  be  depending,   to  have  such 
inspection.(8)     But  if  the  dispute  be  between   the  Lord  and  a 
l.^^^j^Q^'^""  stranger,  as  if  the  Lord  plead  a  modus  in  a  suit  by  the  parson 
235.           '  for  tithes,(9)  or  bring  an  ejectment  for  lands,  claiming  them  as 
(9^  Bishop  of  copyhold,  when  the  defendant  contends  they  are  freehold  ;(10)  or 
Htiefoid  V.    the  Lords  of  two  neighbouring;  manors  dispute  about  the  boun- 
Bridgewater,  daries,(ll)  the  Lord  is  not  obliged  to  produce,  nor  will  a  Court  of 
Bunb.  269.     Justice  compel  him  to  shew  the  rolls  of  his  manor ;   for  in  this 
(10)  Smith  V.  case  they  are  considered  as  mere  private  deeds   in  which  the 
Davi(^,iWiis.  other  persons  have  no  property :  and  therefore  if  it  be  necessary 
Rep,  151.       to  give  them  in  evidence  against  him,  the  same  previous  steps 
/lix-r  lu  .     must  be  taken,  and  the  same  evidence  given  as  in  all  other  cases 

(ll)Taibott;.     ^       .  J       ,      .  « 

Viiieboys,       of  pnvatc  deeds,  in  possession  of  the  adversary,  of  which  I  shall 

Rep'  ui        ha.'^'e  occasion  to  speak  in  the  next  section. 

The  several  instances  before  mentioned,  in  which  inspection 
of  public  books  was  granted,  were  cases  in  which  the  person  ap- 
plying was  claiming  or  contesting  a  civil  right ;  but  in  no  case 
where  a  criminal  prosecution  has  been  commenced,  will  a  Court 
of  Justice  compel  the  party  against  whom  such  prosecution  is 


PUBLIC  WRITINGS. 


139 


carried  on,  or  a  public  body,  of  which  he  Is  a  member,  to  grant  Chap.  ii.  s.  3. 

such  inspection  ;  for  this  would,  in  effect,  be  obliging  the  person  — - 

accused  of  a  crime  to  furnish  evidence  against  himself,(l  which  (nVid.'iSii-a. 
is  contrary  to  one  of  the  first  and  most  humane  maxims  of  the  0,1  '  '  ^' 
la.\v  of  ^nsrland :  and  therefore,  when  an  information  was  filed  •^'^^S'":' •'■• 

•      X  *•        •      .•         r      /l-  ,  i\-  ,^,  Mead, '2  Lord 

against  corperation  justices  tor  taking  money  to  grant  liccnces,(2)  Raym.  9.27. 
and  a  similar  prosecution  commenced  against  the  Vice-Chan-,  ,„ 
cellor  of  Oxford  for  misbehaviour  in  his  office,(3)  the  Court  re-Comeiius, 
fused  to  grant  an  inspection  of  the  corporations  books  in  the  one'"^  ^"■''-  ''^"^• 
case,  and  of  the  Statutes  of  the  University  in  the  other  ;  so  if  an  (3)  Rex  v. 
information  be  granted  for  bribery  at  an  election, (4)  or  against  ,|^lj''„^^g 
overseers  for  making  an  illegal  rate,  the  Court  will  not  in  either  1  Black.  37. 
case  grant  a  rule  for  the  inspection  of  the  corporation  or  parish  /^n  j^^,^  ^^ 
books. (c)     And,  in  a  late  case,  where  ^.  had  by  the  authority  H  ydon, 
of  a  parish  vestry,  made  a  report  in  writing  respecting  the  con-       ^^  ' 
duct  of  B.  founded,  as  it  was  stated,  on  the  inspection  of  cer- 
tain documents  then  in  the  parish  r.hest,  but  which  had  since  got 
into  the  .possession  of  B.  who  claimed  to  be  vestry  clerk,  and  B. 
brought  an  action  against  J9.  as  for  a  libel  contained  in  the  re- 
port, the  Court  of  King's  Bench  refused  to  compel  B  to  produce 
or  permit  A.  to  take  copies  of  the  documents  so  in  his  posses- 
sion.(5)  (5)  May  v. 

But  informations,  in  the  nature  of  quo  warranto,{t)  though  in  9['^^I'''!'  .„„ 
form  criminal  prosecutions,  do  not  fall  within  the  reason  of  the 
last  class  of  cases,  for  they  are  in  effect  proceedings  to  ascertain  (j^J'^there 
civil  rights;  and  therefore,  when  a  rule  has  been  obtaiiL-^d  for  an  cited,  and 
information,  by  a  person  who  is  a  member  of  the  corporation,  it  ^       3. '  •i  . 
is  considered  as  matter  of  course  for  the  Court  to  grant  a  rule 
to  inspect  the  corporation  books  ;  but  it  has  never  been  decided 
that  a  relator,  who  is  a  stranger  to  the  corporation,  shall  have 
such  inspection.     Indeed  it  is  hardly  possible  that  the  question 
should  ever  arise,  for,  unless  the  title  of  a  person  in  possession 
of  an  office  is  objected  to  on  some  public  ground  which  concerns 
the  whole  community,  as  for  not  having  taken  the  sacrament,  or 
some  such  general  objecti<)n,(7)  the  Court  will  hardly  ever  dis- (7)  Rex  r, 
torb  the  peace  of  corporations  by  listening  to  the  application  "f  R^'^^'^574  ^' 
a  mere  stranger  ;  and  even  when  a  member  of  the  corporation  is  note, 
the  relator,  the  inspection  granted  to  him  is  confined  to  such  do- 
cuments as  concern  {he  point  in  dispute,(8)  within   which  limi-(s)  Rex  7>, 
tation  all  inspection  of  public  documents  is  confined. (9)  Rep,  579. ' 

B(  nson  V. 
(c)  Vide  post.  Fort,  cued  I 

Wil8.240,&c, 


|^(j  fmVATE  WRITINGS. 


SECTION  IV. 


Of  Instruments  of  a  private  nature. 

We  now  proceed  to  the  consideration  of  written  evidence,  ot 
'^  Deeds  &i5.   ^  ^^^J  different  description  from  that  noticed  in  the  preceding 
_______   sections,  viz.  the  mere  private  instruments  of  the  parties,  or  of 

those  through  whom  they  claim.  We  have  observed  that  docu- 
ments of  a.  public  nature  are,  for  the  most  part,  confined  to  a 
particular  spot,  and  liable  to  be  called  for  by  several  persons  at 
the  savne  time  ;  for  which  reason,  and  also  on  account  of  the  au- 
thority which  the  law  gives  to  acts  done  under  its  immediate 
sanction.  Courts  of  Justice,  in  such  cases,  permit  examined  co- 
pies to  be  given  in  evidence.  But  of  private  deeds,  or  other  in- 
10  Co.  92.  strunients,  the  production  of  the  original,*  if  in  existence,  and  ia 
the  power  of  the  party  using  it,  is  always  required ;  till  which 
done,  no  evidence  whatever  of  the  contents  can  be  received ; 
but  where  the  original  has  been  destroyed,  or  lost  by  acci- 
dent,(l)  as  where  an  original  award  was  lost  in  a  mail  which  was 

(1)  Vide  Read  j.Qjjijgjj  .j^)  or  being  in  the  hands  of  the  adverse  party,  notice  has 
3T  Rep.  151.  been  given  him  to  produce  it,(3)  then  an  examined  copy,  or  even 
,r.sn  I-         parol  evidence  of  the  contents,  beina;  the  best   evidence  in  the 

(2)  Robinson    ^  '  O 

V.  Uavies,       power  ofthc  party,  is  received  ;(a)  it  being  first  proved,  that  the 

1  Sira.  526. 

(3)  Young  V.  *  It  has  been  said  that  even  the  ci<iinterp;iit  'if  a  deed  cannot  be  read  in  evidence 
Holmes,  without  some  account  of  the  original,  {Salk.  287,)  and  the  general  practice  is  to  give 
I  atra.  /O.        nolicr   to  a  tenant  to  produce  the  original  lease,  in  an  acnon  by  his  l.<Ddlord  against 

him  ;  but  there  can  be  no  reason  why  the  copy,  or  lather  the  duplicate  of  the  deed 
execii;eit  by  the  party  himself,  should  not  be  evidence  o!  the  whole  conientsofit 
against  him  ;  though  if  ihe  demise  came  in  question  in  an  nction  against  the  lessor, 
ora  ihii-il  person,  it  certainly  would  not.  in  a  laic  case,  where  a  declaration  for  not 
statnii'iig  an  indenture  oi' appreniicesiiip,  stated  that  ./9.  put  hinisi  If  apprentice  to 
the  delen'lunt,  the  part  of  the  dred  executed  by  Inm  was  field  suffiei'-nt  evidence, 
without  production  of  or  notice  to  produce  the  other  part  executt-d  by  ^.  Burleigh 
V.  Stibbn,  5  T.  Rep.  465.  So  in  an  ejectroent  by  landlord  against  tenant,  for  a  for- 
feiluie,  the  It-ssor  of  the  plaintiff  proved  iht-  counterpart  ol  the  lease  executed  by 
the  def  ndani ;  but  having  given  no  notice  to  produce  the  original,  an  objection  was 
taken  by  the  defendant's  counsel,  thai  the  counterpart  could  not  be  read.  Law- 
REscE  J.  ruled  that  it  w^s  sufficient,  saying  it  was  an  aeknowledgnient  by  the  de- 
fendant, under  his  hand  ami  seal,  that  the  lessor  of  the  plaintiff  tiadd'mistd  to  him, 
and  that  he  hail  become  tenant  under  the  terms  mentioned  in  the  countei  part  Soe 
(km.  West  V.  Diivies,  Gloucester  Spnng  Jlss.  1806:  and  the  Court  afterwards  re- 
fused a  new  trial.     7  Exist,  363. 

(d)  Parol  eridence  ■  f  the  contents  of  written  papers,  is  not  admissible,  unless  they 
are  proved  t;  he  Is:  cr  destroye  !,  or  in  ^he  possession  of  he  adverse  party ,  and 
not  produced  upon  notice.  Campbell  v.  Wallace,  3  Yeatcs''  Rep.  271.  De  Haven  v. 


PRIVATE  WRITINGS.  ^^£ 

oriffinal,  of  which  such  secondary  evidence  is  offered,  was  a  ge-chap.  ii.  s.4. 

°  Proof  of 


Henderson,  I  Ball.  Rep.  424.  Lawrence  v.  The  Ocean  Ins.  Co.  11  Johns.  Rep.  260. 
Waring  v.  Warren,  1  Johns.  Rep.  340.  Rogers  et  al.  v.  Frt»i  Huesen  et  al.  12  i5o. 
221.  Dobbin  v.  Walking,  Cole.  Cas.  33.  Frauxw  Fraux,  Penning.  Rep.  166. 
Jackson  ex  d.  Livingston  et  al.  v.  Frier,  16  Johns.  Rep.  193.  And  even  without 
notice,  Taunt.  iJ  S.  Bost.  Turnpike  Corp.  v.  Whiting,  10  JJfoss.  7?e/).  327. 
Ca</y  V.  Eggleston  et  al.  11  Z>o.  282.  But  it  cannot  have  the  effect  as  if  defendant 
I'efused  after  notice,  ibid.  Storer  v.  Batson,  8  Do.  431.  Et  \\i.\e Isaacs  v.  JWGrath 
et  al.  I  JVott  &  M'  Cord's  Rep.  573.  Bunch  v.  Hurst,  3  Eq  Rep.  290.  Mcholsou 
V.  Hilliard,  Carolina  Latv  Repos.  253.  Richards  v.  Stewart,  2  Z)a?/'s  i?e/).  328. 
Jlndrews  etux  v  Hooper,  W^Mass.  Rep.  475.  i>s.  of  Packer  v.  Gonsalus,  1  5erg-. 
£;?  if.  /fe/».  526.  Z>eM7i  fes.  of  Baker  v.  ^Fefii,  I  /ftiz/w.  Rep.^3.  Garland  v.  Goot/- 
Zoe's  adms.  2  Z)o.  351. 

Pafol  evidence  that  an  indenture  of  apprenticeship  was  executed  conformably  t 
law  will  not  be  admitted  unless  it  is  proved  to  be  lost.    St.  Clair  v.  Jones,  Addis. 
Rep.  343.     Nor  of  a  lost  deposition  by  a  deceased  witness,  the  party  offering;  it  hav- 
ing had  it  in  his  power  to  supply  the  loss  in  the  life  time  of  the  witness.    Les.  of 
M^CaUy  v.  Franklin,  2  Yeates''  Rep.  340. 

A  deposition  is  not  evidence  to  prove  the  contents  of  a  paper  not  shewn  to  be  lost 
or  mislaid.  M' Kee  v.  Reiff,  4  Yeates''  Rep.  340. 

In  ejectment  by  a  purchaser  at  Sht  riff's  sale  against  a  stranger,  the  plaintiff  cannot 
give  parol  evidence  of  a  de.'d,  by  which  the  title  was  conveyed  to  the  defendant  in 
the  execution,  without  shewing  that  all  reasonable  endeavours  had  been  usf;d  to  ob- 
tain the  original.  Little  et  al   v.  Les.  of  Delancey,  5  Binn.  Rep.  2f>6. 

A  witness  once  entitled  to  lands,  may  prove  that  he  transferied  them  to  another, 
wheri;  his  deed  is  lost.  Les.  of  Fogler  v.  Evig  et  al.  2  Yeates''  Rep.  119. 

Parol  evidence  is  admissible  to  prove  the  contents  of  a  writing  which  is  the  imme- 
diate subject  of  the  action,  wifhout  notice  to  defendant  to  produce  it.  But  it  is  not 
enough  that  it  is  referred  to  in  the  narr.  Alexander  y.  Cozdler  et  al.  2  Serg.  c!f  R. 
Rep.  494. 

In  an  action  for  a  breach  of  defendant's  agreement  to  keep  fair  and  regular  books, 
parol  evidence  cannot  be  given  of  the  contents  of  a  book  nut  in  defendant's  posses- 
sion at  the  trial,  and  which  no  notice  had  been  given  him  toproduce.  ibid. 

Parol  evidence  of  the  contents  of  a  deed  proved  to  be  lost,  is  not  admissible,  as 
the  party  might  have  obtained  a  cinfirmation,  or  an  order  ol  Court,  under  the  Act 
of  1786,  (2  iS'm   L  375)  Hamilton  v.  Van  Sweari7igen,  Addis.  Rep  48. 

The  Act  of  27lh  February,  1798,  wh  ch  aiithoi  ises  the  Court  to  enter  judgment 
against  the  party  who  refuses  to  comply  with  an  order  for  the  production  of  papers, 
does  not  affect  the  common  law  principle,  as  to  the  admission  of  parol  evidence  of 
papers  which  the  party  has  relused  to  produce  on  notice.  Alexander  v.  Coidter 
et  al.  2  Serg.  &  R.  Rep  494. 

In  ejectment  by  the  Stieriff's  vendee  against  A.  theplaintiffclairaing  under  a  judg- 
ment and  execution  as^ainst  B.  the  uncle  of  A.  parol  evidence  was  adraitt  d  of  a 
deed  by  which  the  land  in  controversy  was  conveyed  to  B.  without  proof  of  notice. 
Edgar's  les.  v.  Robiiison  et  al.  4  Dall.  Rep.  132.  But  in  this  case  there  wassorae- 
thin:,  particular.     Per  Tilghman  C.  J.  and  Ye.\tf.8  J.  5  Binn.  Rep.  270.  273. 

The  bare  circumstance  of  ihe  party  not  having  it  in  his  power  to  produce  a  paper, 
is  not  sufficient  reason  for  admitting  parol  evidence.  Tiie  question  will  he,  whether 
with  proper  exertions  he  might  not  have  had  it  in  his  powei — and  sometimes,  i;  the 
paper  be  in  existence,  wht  ther  its  production  is  not  indispi  nsable.  Gray  v.  Pent- 
land,'iSerg.  &  R.  Rep.  31. 

It  seems  there  is  no  case  where  parol  evidence  has  been  admitted,  merely  be- 
cause the  paper  is  in  the  hands  of  a  third  person,  and  a  subpoena  duces  teaim  has 
been  refused,  ibid. 


Deeds,  &c. 


14S  PRIVATE  WRITINGS. 

Chap.  IT.  s.  4.  niiiiie  and  valid  instrument,(l)  *  and  that  all  due  diligence  has, 

I'mot  of 
Deeds,  !sc.     — 

-       A  paper  noticed  to  be  pioiluced  and  called  for,  is  evidence  ;  and  the  party  notie- 
I )  Gnodier     '"»'  ''■''*  ""*■  *  '''g^'t  fi''st  to  inspect  it.   Lawrence  et  al.  v.  Van  Home  et  al.  I  Caines' 
V.  I  ,ake,  Hef).  '276.    Sed  guere  Kenny  v.    Clarkson  et  al.  I  Johns.  Rep,  385 .    lioundtree  v 

1  Aik.  446.       Tibbs  4  Haij-.u.  Rep.  108. 

If  the  party  who  gives  the  notice,  waives  reading  the  papers  in  evidence,  he  may 
do  so,  and  they  are  not  made  evidence  by  the  notice.  Blight  v.  Jlshley,  1  Peterii' 
Rep.  22. 

Booiis  called  for  do  not  become  evidence  by  merely  inspecting  them,  -without  ask- 
ing questions.  Rumsey  v.  Lovell,  ^inth.  JV.  P.  12.  et.  n.  b.  Et  vide  Farm.  iS  Meeh. 
Bank  v.  Israel,  6  Serg.  &  R.  Rep.  293. 

Where  bonks  are  produced  on  notice,  and  entries  are  read  in  evidence  by  the  party 
calling  for  them,  the  party  producing  (hem  may  read  other  entries  necessarily  con- 
nected with  the  tbrmer,  if  made  prior  to  the  commencement  of  the  suit.  Witliers  v. 
Gillespey,  7  Bo.  10. 

It  seems  the  rule  is  different,  if  the  party  merely  inspect  the  books  with  the  view- 
to  their  being  used.  ibid. 

If  the  party  producing  is  one  of  the  parties  to  the  deed,  it  \a  prima  facte,  to  be 
taken  as  duly  executed,  and  may  be  read.  Betts  v.  Badger,  12  Johns.  Rep.  220., 
Et  vide  Jackson  ex.  d.  Steiuart  v,  Kingsly,  17  Do.  158.  Sed  contra  Anth.  JV.  P. 
19,20.  n.  b.  But  a  plaintiff  producing  a  deed  under  which  he  holds  an  estate,  forms 
an  exception  to  the  rule.  ibid. 

Although  a  will  is  produced  by  a  party  to  an  ejectment  on  notice,  it  cannot  be 
read  unless  it  has  been  proved  acconliiig  to  the  laws  of  the  State.  Uylton  v.  Brown, 
C.  C.  Penn.  Jipril,  1806,  M.  S.  Rep. 

In  Saver  v.  Kitchen,  1  Esp.  Rep.  211,  Lord  Kenton  held,  that  if  one  party  calls 
for  the  other  party's  books,  but  when  they  are  produced  declines  using  them,  the 
mere  calling  for  Ihera  will  not  make  them  evidence  for  the  adverse  party. 

But  in  TVharam  v.  Routiedge,  5  Esp.  Rep.  235,  Lord  Ellesbobough  says,  "you 
cannot  ask  for  a  book  of  the  opposite  party,  and  then  <letermine  whether  you  will 
use  it  or  not,  if  you  call  for  it,  you  make  it  evidence  for  the  other  side,  if  they  think 
fit  to  use  it. 

If  there  is  not  conclusive  evidence  of  the  destruction  of  a  will,  to  entitle  a  party  to 
give  it  in  evidence,  he  must  shew  that  diligent  search  was  made  in  those  places 
where  it  was  most  likely  to  be  found,  if  in  existence.  Jackson  ex  d.  Bush  et  al, 
V.  Ilasbrouck,  12  Johns.  Rep.  192. 

Under  the  Act  of  Assembly  of  Vermont,  the  Court  will  not,  during  the  trial,  or- 
der the  party  to  produce  a  paper /ns<fl7z/(?r,  but  there  must  be  reasonable  notice 
Hastings  v.  Powers,  1  Tyl.  Rep.  272. 

Where  the  opposite  party  has  the  original,  and  refuses  to  produce  it,  a  copy  will 
be  received  in  evidence.  Sedgwick  v.  Waterman,  2  Root.  Rep.  434.  Slorery. 
Batson,S  Mass.  Rep.  431.  Vide  Taunt.  ^  S.  Boston  Tump.  Corp.  v.  fV/uting, 
10  J5o.  332. 

A  party  will  not  be  entitled  to  read  a  copy  of  the  sailing  orders,  the  original  of 
which  is  in  the  opposite  party's  hands,  unless  notice  has  been  given  to  produce  Iheitt 
which  has  not  been  complied  with.  Smallwood  et  al.  v.  Mitchell  et  al.  2  Hayw. 
Rep.  145. 

On  an  indictment  for  stealing  a  bank  note,  &c.  under  the  Statute,  in  JV'ew  York, 

•  Where  an  instrument  requiring  a  stamp  is  written  on  plain  paper,  and  after- 
wards lost  or  destroyed,  though  bv  the  adverse  party,  no  evidence  can  be  received 
of  its  contents.  Rippiner  \.  Wright,  "2  Barn.  &  Jld.  i7S.  Rex  v.  Castle  Mor- 
ton, 3  Bam.  &  Aid.  588,  But  if  the  adverse  party  withhold  it,  the  Court  will  or- 
der him  to  produce  it  to  be  stamped.    Bateman  v.  Phillips,  i  Taunt.  157. 


PRIVATE  WRITINGS.  |43 

111  the  case  of  a  lost  deed,  been  used  to  regain  the  possession  of  ci,a,,.  n  s.  4. 

I'lnof  of 

— — ~~~      ""    D.wlsSif. 

(JV*.  R-  L.  1*4,  sec.  24,  ch.  88)  parol  evidence  of  the  contents  is  admissible,  wiiliout ^ 

accounting  for  Iheif  nnn-productinn.     The  People  v.  IMbronk,  13  Johns.  Jief).  90. 

To  prove  tiie  loss  of  a  written  instrument,  it  must  be  shewn  lliat  diligent  search 
and  in()uiry  have  been  made  of  liiose  p'-rsnns  in  whose  possepsion  it  woulil  have  been 
had  it  ever  existed.     Jacksojiex  d.  Livingston  et  al.  v.  Frier,  16  Johns.  Rep.  193. 

The  testimony  of  a  person  to  whose  eare  a  j)aper  has  been  entrusted,  that  he  had 
made  search  and  could  not  find  it,  is  evidence  of  its  loss.  Jones  et  al.  v.  Fales,  5 
Mass.  Rep.  101. 

On  an  indictment  for  forgery,  if  the  instrument  alleged  to  have  been  forged,  havn 
been  secreted  to  protect  the  defendant,  even  without  his  knowledge,  a  copy  of  the 
instrument,  taken  by  the  person  whose  name  is  forged  and  who  had  seen  t!ie  instru- 
ment, is  admissible.     Commoniuealth  v.  Snell,  3  Mass.  Rep.  82. 

In  Connecticut,  it  has  been  decided  that  the  writing  alleged  to  be  forged  should 
be  produced.  State  v.  Blodget,  1  Root.  Rep.  534.  The  same  as  to  coin.  State 
V.  Osbouriijibid.  152. 

In  the  case  of  Ross  v.  Bruce,  I  Day''s  Rep.  100,  it  was  decided,  that  evidence  that 
a  note  is  in  the  bauds  of  the  defendant,  and  that  it  was  forged,  was  admissible  with- 
out producing  it. 

Parol  evidence  is  admissible  to  prove  the  contents  of  promissory  notes,  which  are 
lost.    Jones  et  al.  v.  Fales,  5  Mass.  Rep.  101. 

An  extract  of  a  lost  letter  cannot  be  given  in  evidence,  though  the  witness  by 
whom  its  correctness  is  offered  to  be  proved,  be  ready  to  swear  that  there  was  no- 
thing in  it  relating  to  the  matter  in  controversy.  Dennis  v.  Barber  et  al.  6  Serg. 
&  R.  Rep.  420. 

A  copy  admitted  on  notice  during  the  trial  to  the  other  party  to  produce  the  origi- 
nal and  he  failing  to  do  so.     M'Doivall  v.  Hall,  2  Bibb^s  Rep.  612. 

The  cashier  of  a  baiik  is  a  competent  witness  for  the  bank  to  prove  that  a  note  be- 
longing to  the  bank  was  lost  while  he  was  cashier.  Strafford  Ba7ik  v.  Connell  et 
al.  Adam's  Rep.  192. 

The  copy  of  a  deed  from  the  record  is  evidence,  if  the  original  is  in  the  posses- 
sion of  another,  it  is  the  best  evidence  the  nature  of  the  case  will  admit.  Sherwood 
V.  Hubbel,  I  Root.  Rep.  498.  Parker  v.  Smedleij,  2  Do.  286.  Halsey  v.  Famiing, 
ibid.  100. 

The  recording  of  a  deed  is  piima  facie  evidence,  and  no  more,  that  the  deed  was 
legally  proved,  and  admitted  to  record.  Les.  of  Talbot  \ .  Simpson,  1  Peters'  Rep. 
188. 

An  attested  copy  of  a  recordeil  deed,  \i  prima  facie  evidence  of  the  title,  and  will 
be  received  when  the  original  cannot  be  obtained.  Parker  v.  Sniedley,  2  Roofu 
Rep.  286. 

The  copy  of  a  deed  enrolled  in  the  King's  Bench  in  England,  and  proved  before 
the  Lord  Mayor  of  London,  to  be  a  true  one,  was  allowed  in  evidence  to  sup- 
port a  lille  to  lands  in  the  provnice.     Les.  of  Hyam  v.  Edwards,  1  Dall.  Rep.  1. 

A  deed  executed  in  England,  and  acknowledgi^d  here,  though  not  recorded  was 
read  in  evidence.     Morris's  les   v.  Va7uleren,  1  Dall.  Rep.  66. 

An  exemplification  of  a  deed  recorded  in  Philadelplda  county,  for  lands  lying  in 
several  counties,  was  received  in  evidence,  the  original  being  shewn  to  be  lost.  Les. 
ef  Scott  v.  Leather,  3  Feates'  Rep.  184. 

Qitere,  Whether  the  copy  of  a  deed  for  lands  in  two  counties,  and  recorded  in 
one  only,  is  evidence  in  ejectment  for  lands,  in  the  county  in  which  it  is  not  recorded 
where  the  original  is  not  proved  to  be  lost.  Vickray  v.  M Knight,  4  Binn.  Rep. 
204. 

An  exemplification  of  a  deed  certified  by  the  recorder  of  one  county,  conveying 
lands  lying  in  that  and  another  county,  is  evidence  in  a  dispute  concernipg  the  lat- 


144  PRIVATE  WRITINGS. 

Chap.  II.  s.  4.  it.(e)     Proof  by  a  witness  who  had  the  instrument,  that  it  was 
Proot  ot     thrown  aside  as  of  no  further  use,  and  therefore  that  he  believes 

JJefds,  &c. 

it  to  be  lost,  is  sufficient  ;(1)  for,  as  was  observed  in  a  late  case. 


(I)  Rest)       ^^  ^=  ^  '^'^U  different  thing  whether  the  subject  of  inquiry  be  an 
Johnson,        useless  paper,  which  it  may  reasonably  be  supposed  to  be  lost, 

8  East'  284.      

r  'sewe'l'l"^^^'''^''-    -^'^^ure  v.  Hillegas,  7  Serg.  &  R.  Rep.  313.    Such  also  has  been  ihe  ilecision 
s'm.  &S.296  of  the  Circuit  Court  ot  ihe   U.  States,  Penn.  District.    JM'Keeii  v.  Delancy^s  les . 
'  5  Crunch's  Rep.  22. 

The  copy  of  the  manifest  of  a  vessel,  (the  Act  of  Congress  of  2d  March,  1799, 
liaving  required  it  to  be  recorded,)  certified  under  the  hands  and  seals  of  the  custom 
house  officers,  and  proved  by  a  witness  to  have  been  compared  with  the  record,  was 
admitted  as  evidence  on  an  indictment  for  destroying  a  vessel  at  sea.  JJ.  States  v, 
Johns.  4  Bull.  Rep.  413.— Am  Ed. 

(e)  The  general  rule  is,  that  before  a  copy  can  be  received,  the  existence  and  loss 
or  destruction  ot  the  original  must  be  proved.  JMeyer  et  alv.  Barker,  5  Binn.  Rep. 
234. 

Kor  can  it  be  read  without  satisfying  the  Court  that  the  original  was  genuine,  yet 
where  it  is  contained  in  the  record  of  a  foreign  Court,  and  read  without  objection,  it 
is  then  too  late  to  objtct.  Russell  v.  Un.  Ins.  Co.  C.  C.  Penn.  Jlpril,  1806,  M. 
S.  Rep. 

Where  an  original  deed,  on  which  suit  has  been  brought,  is  traced  from  the  plain- 
tiff to  his  attorney,  who  btlieves  it  to  have  been  lost  while  in  his  possession,  a  copy 
may  be  given  in  evidence,  without  affidavit  by  the  plaintifTthat  it  is  not  in  his  posses- 
sion. JMeyer  et  al.  v.  Barker,  6  Binii.  Rep.  228. 

On  a  trial  for  treason,  a  copy  of  a  letter  inciting  to  insaiTection,  was  admitted  on 
proof  that  it  was  one  of  the  copies  actually  circulated  and  at  that  time.  XI.  States  v 
JMitchell,  2  Dull.  Rep.  357. 

A  copy  of  a  cancelled  bond,  in  the  possession  of  the  party,  may  be  read  in  evi. 
dence  after  notice  to  produce  the  original,  without  first  shewing  how  it  came  to  be 
cancelled.  Drum  v.  Les.  of  Simpson,  6  Binn.  Rep.  478. 

Where  an  original  paper  is  in  the  hands  of  an  attorney,  under  such  circumstances 
that  he  cannot  be  compelled  to  produce  it,  the  party  may  prove  and  exhibit  a  copy. 
Lymie  v.  JuiUl,  3  Day's  Rep.  499. 

A  copy  of  a  h-tter,  proved  to  be  a  true  copy  of  an  original,  put  in  the  post  office, 
directed  to  the  defendant's  intestnte,  without  notice  to  produce  the  original,  is  not 
evidence.  PaUon'sadms.  v.  Ash,  7  Serg.  cJ"  R.  Rep.  116. 

Before  a  party  can  go  into  the  contents  of  a  lost  deed,  he  must  prove  the  existence 
or  expcution  of  it,  anfl  its  loss ;  or  give  some  other  account  from  which  the  latter 
may  be  inferred.  Jlou-ell  et  al.  v.  House,  2  Rep.  Const.  Ct.  S.  Car.  83.  Et  vide 
Grimes  v.  Talbot, \  Marsh.  Rep.  20,i. 

Of  evidence  to  prove  a  lost  note,  vide  Peabody  v.  Denton  et  al.  2  Gall.  Rep,  351. 

Parol  evidf-nce  of  the  contents  ofa  letter  of  attorney,  may  be  produced,  if  the  per- 
son to  whom  it  is  given,  prove  it  to  be  lost.  Livingston  v.  Rogers,  1  Caines''  Cas. 
in  Er.  xxvii.     2  Johns    Cas.  in  Er.  488. 

W'here  a  deed  is  offered  in  evidence,  the  Court  may  decide  whether  it  is  suffi- 
ciently proved,  and  admit  or  reject  it  accordingly,  or  they  may  refer  the  evidence  to 
the  jury,  instructing  them  to  disregard  it,  unless  they  are  satisfied  with  the  proof  of 
its  execution.  Commissioners  of  Berks  County  v.  Ross,  3  Binn.  Rep.  539.  Vide 
JH'Corklev.  Binns,S  Do.  348. 

W'here  a  deed  is  executed  by  virtue  ofa  power  of  attorney,  it  should  be  produced 
at  the  trial.  Johnton  v.  Mason,  1  Esp.  Rep.  89.  Yarborough  t,  Beardy  Taylor, 
25.     Wute  et  al.  v.  Skitmer,  13  Johns.  Rep.  307.— Asr,  Ed. 


PRIVATE  WRITINGS,  .^^ 

or  wliether  it  is  an  important  document  which  the  patty  might  ci,an.  u.  s  4. 
have  an  interest  in   keeping,  and   for  the  non-production   of     i*' oof  of 
which  no  satisfactory  reason  is  assigned .(!)(/)     So  in  a  settle-  _  ^^'^^'    "' 
ment  case,  where  there  was  only  one  part  of  an  indenture,  an/np^.  *> 
application  to  the  apprentice,  since  deceased,  and  his  declara- ''"'t,  C  J. 
tion  that  he  burnt  it  when  tlie  term  expired,  with  an  application  oyg"'"'         ' 
to  the  executor  of  the  master,  and  a  declaration  by  him  that  he 
knew  nothing  about  it.(2)     But  in  a  case  where  two  parts  of  an  (2)  Rex  r. 
indenture  had  been  executed,  and  one  part  having  been  destroy- 1^'''''^"^''"^^°'^ 
ed,  application  had  been  made  to  the  party  who  had  the  other  iAi.  &i,s.48. 
part,  his  declaration  that  he  could  not  find  it,  was  considered  as 
insufficient  without  calling  him  as  a  witness.(3)  (g)  (3)Rexx> 

If  the  original  instrument  is  supposed  to  be  in  the  hands  of  a^Hsiieton, 
third  person,  he  should  be  served  with  a  subpoena  duces  tecum      '    ^P-^"^^- 
to  produce  it ;  and  lest  he  should  have  delivered  it  to  the  ad- 
verse party  before  the  service  of  the  subpoena,  it  may  be  prudent 
also  to  give  notice  to  the  latter  to  produce  it.     But  if,  after  ser- Leeds  r-. 
vice  of  the  subpcena,  the  person  in  whose  possession  the  instru-^""'*^*'.'''"' 

...  „  wi(e,  Appen- 

ment  then  was,  deliver  it  to  the  other  party  for  the  purpose  oftlix. 
avoiding  the  effect  of  the  writ,  this  will  not  render  it  necessary 
to  give  him  notice  to  produce  it,  but  the  party  so  calling  for  it 
may,  in  such  case,  give  parol  evidence  of  its  contents. (/t) 

[J)  The  party  himself  must  prove  the  loss  of  a  deed, and  no  one  can  do  it  forhim. 
Wanton  v.  Miller,  1  Hayw.  Rep,  4.     Wilcox  v.  Ray,  ibid.  410. 

But  he  can  prove  nothing  more.  Sechrig/U  ex  d.  (yright  et  iix.  v.  Bogun,  ibid. 
178. 

Where  an  original  deed,  on  which  suit  has  been  brought,  is  traced  from  the  liands 
of  the  plaintiff  to  his  attorney;  who  believt^s  it  to  have  been  lost  wliile  in  his  posses- 
sion, a  copy  may  be  given  in  evidence,  without  affidavit  by  the  plaintiff,  that  the 
original  is  not  in  his  possession.  JMyer  et  al.  v.  Barker,  6  Binn.  Rep.  238. — 
Am.  Ed. 

(i*)  Where  there  are  two  persons  whoadmit  themselvi.'s  to  be  tenants  in  cotnman, 
a  Court  of  Equity  will  order  the  production  of  title  deeds,  in  the  hands  of  either,  for 
the  other's  inspection.    Lambert  v.  Rogers,  2  JMerivale's  Rep.  480. — Am;.  Ed. 

(A)  In  an  action  for  a  libel,  parol  evidence  cannot  be  given  of  the  contents  of  a  de» 
position,  sent  to  the  Governor  of  the  State,  containing  charges  against  a  public  officer, 
though  the  Court  had  refused  a  subpoeiia  duces  tecum,  and  though  the  Governor 
declined  giving  the  deposition  to  the  plaintiff.  Gray  v.  Pentland,  2  Serg.  ^  R. 
Rep.  31. 

Notice  to  produce  a  writing  on  the  trial,  is  not  spent,  by  the  cause  not  being  tried, 
at  the  next  circuit.  Jackson  ex  d.  Burr  v.  Shearman,  6  Johns.  Rep.  19.  Et  vide 
Gilmore  v.  Wale,  Jlnth.  J\l'.  P.  Cas.  43. 

It  alter  notice,  he  puts  it  out  of  his  power,  he  ought  to  apprise  the  opposite  party. 
Jackson  ex  d.  Burr  v.  Shearman,  6  Johns.  Rep.  19. 

A  surety  in  a  bond  for  a  Sheriff's  faithful  performance  of  his  duties,  who  ha 
obtained  possession  of  the  books  after  his  death,  insolvent,  shall  be  obliged  to  pro- 

u 


|j.g  PRIVATE  WRITINGS. 

Chap.  II.  s.  4.     If  there  be  a  subscribing  witness  who  is  living,  and  in  a  situa- 
Subscrii>ing  ^jq^  ^q  (jg  examined,  he  is  the  only  person  competent  to  prove 

W  iitif sscs.  J    I  »  '       _ 

_________  the  execution,  because   he   may  know  and   be   able  to  explain 

facts  attendina:  the  transaction  which  are  unknown  to  a  stran- 

(1)  Johnson  r  g^^"  5  ^"^  f*""  this  reason,  it  has  been  held   that  a  confession  or 

Mason,  acknowledgment  of  the  party  to  the  deed,  whether  it  is  offered 

^'''    '*'       as  evidence  against  him,(l)  or  against  a  third  person, (2)  will  not 

(2)Abboit;.    excuse  this  testimony.*     This  rule  of  evidence   extends  to  all 

I'lunibe,  1       I  ji         1       1    1  •    ,•         •  II 

Doiif;.  216.      cases,  whether  the  deed  be  an  existing  instrument  or  canceli- 
Laingv.         ed,(3)  and  even  if  it  be  lost,(4)  and  parol  evidence  given  of  its 

Ramc,  2  Bos.       '^    '  .    .  ■  rt  n     i      u 

&  Pui.  85.      contents,  the  subscribing  witness,  if  known,  must  be  called  ;  but 
,  ^  „  if  he  is  not  known,  any  other  person  who  has  seen  it,  is  a  com- 

(,3)  Bretton  v.  .  . 

Cope,  Peake,  petent  witness.(i) 

X.  p.  30. 

(4)  Keeling;  v. 

Ball,  Appt-n-  duce  those   books  in  evidence,  on  a  subpoena  duces  tecum,  in  a  suit  between  other 

dix.  37  Geo.  3.  persons,  notwithstanding  the  surety  was  apprehensive  of  danger  to  himself  from  the 

exhibition  of  the  books.     Hcnvkin^s  exrs.   v.   Sumter  et  al.  4  Desauss.  Eg.  Rep. 

102.  446.— Am.  Ed. 

»  In  the  ease  of  Call  v.  Dunning,  4  East,  53,  t!ie  Court  held  that  even  the  ad- 
mission of  the  execution  of  a  bond  in  answer  to  a  bill  in  Chancery,  filed  for  the  ex- 
press purpose  of  obtaining  such  admission,  was  not  sufficient  without  evidence  to  ac- 
count for  the  noi)-pro>luction  of  (he  subscribing  witness.  And  where  a  notice  to 
quit  was  served  on  a  tenant,  which  notice  was  attested  by  a  witness,  it  was  also  held 
that  proof  of  the  service  on  the  tenant,  and  that  he  did  not  object,  was  not  sufficient 
without  calling  the  subscribing  witnt-ss.  Doe  dem.  Sykes  bart.  v.  Xhtrnford,  2 
Jllaule  &  Sehvyn,  62.  But  when  a  man,  on  his  examination  before  commissioners 
of  bankruptcy,  produced  a  bill  ot  sale  from  the  bankrupt,  and  admitted  the  execu- 
tion of  it  in  his  deposition,  this  was  held  sufficient  evidence  of  it  against  hira  in  an  ac" 
tion  of  trover  which  the  assignees  afterwards  brought  to  recover  the  goods  taken  un- 
der it.  Bowles  V  hang-uiorthy ,  5  T.  Rep.  366.  So  if  a  man  agree,  pending  a  cause, 
to  admit  a  deed  on  tin-  tiial,  this  also  will  dispense  with  the  necessity  of  calling  the 
subscribing  witness.  Laing  v.  Raine,  2  Bos.  i$  Pul.  85. 

(?)  The  best  evidence  of  the  execution  of  an  instruraeatis  the  testimony  of  the  sub- 
scribing witness;  the  next  best  is  proof  of  the  hand  writing  of  the  witness,  and  this 
•will  be  admitted  when  the  witness  is  dead  or  out  oj  the  junsdiction  of  tlie  Court. 
Clark  exr.  v.  Sanderson  exr.  3  Binn.  Rep.  192.  Les.  of  Peters  et  al  v.  Con- 
dronet  al.  2  Serg.  &  R-  Rep.  80.  Engles  et  al.  v.  Brui?igton,i  Feates'  Rep.  345. 
Stump  V.  Hughes,  5  Hay-iv.  Rep.  93.  Lewis's  heirs  v.  Lingo,  3  Marsh.  Rep.  247. 
Shihy  v.  Champlin,  4  Johns.  Rep.  461. 

So  if  the  witness  has  become  interested  since  the  time  of  subscribing,  although  the 
interest  arises  by  his  own  voluntary  act.  Les.  of  Hatnilton  v.  Jilarsden,  6  Binn. 
Rep.  45.  Lautermilch  exr  v.  Kneagy,  3  Serg  ^  R.  Rep.  202.  "Vide  Davidson's 
les.  v.  Bloomer,  1  Dall.  Rep.  123.  In  Hamilton  v  nilUams,  1  Hayw.  Rep.  139,  it 
was  inadt-  a  (juesiion.     Et  vide  2  Do-  101.  329. 

If  the  witness  becomts  executor  or  administrsitor  of  the  obligor  in  a  bond,  his  hand 
writing  may  be  proved.     Les.  of  Hamilton  v.  AInrsden,  6  Binn.  Rep.  45. 

Where  the  subscribing  witness  resides  in  a  distant  county,  evidence  of  the  hand 
■writing  is  not  admissible  in  the  Common  Pleas,  as  that  Court  may  issue  subptenas  to 
any  part  of  the  State.    Hantz  v.  Rough,  2  Serg.  &  R.  Rep.  349. 

In  debt  on  bond,  on  the  plea  oinon  est  factum,  where  the  subscribing  witness  was 


PRIVATE  WRITINGS.  ^^y- 

Subscribing  witnesses  are  not  however  necessary  to  the  vali-chap.  n.  s.  4. 
ditv  of  a  deed.f  1 )  and  therefore  if  there  be  none,  or  the  subscrib-    ^"''^c'bmg 

J  "  '"»    -'  _  _  _  Witnessea. 

ing  witness  being  called,  denies  having  seen  the  instrument _ 

(1)  Corny  ns's 

unable  to  prove  the  execution,  evidence  of  parol  declarations  of  the  defendant  ll»;it  (^f^.  ^    Vid(> 
he  had  executed  the  bond,  were  sufficient.     Taylor  v.  Mtekiy,  4  Yeales''  Rep.  79.    i  i_,ev.  25. 

A  deed  may  be  read,  if  proof  be  nia«le  of  the  hand  writing  of  one  of  two  of  the 
subscribing  witnesses,  who  was  supposed  to  be  dead,  and  no  such  person  as  the 
other  could  be  found  after  diligent  search.  Poivers  et  al  v.  JH'Ferran  et  al.  '2 
Serg'  (jf  R.Rep.  44.   Et  vide  Den  ex  d.  Haggard  v.  JMayfiehl,  5  Hay^v.  Rep,  I'il . 

Where  the  only  subscribing  witness  to  a  receipt  had  made  a  deposition,  and  seven 
days  before  the  trial,  went  out  of  the  jurisdiction  of  the  Court,  without  having  been 
subpoenaed,  but  without  llie  party  having  been  apprised  of  his  intention,  it  was  held 
that  his  hand  writing  might  be  proved.  Hamilton  v.  JYI'Gnire,  2  Serg.  &  R.Rep. 
478 

A  deed  of  sixty  years  and  upwards,  witliout  being  accompanied  with  possession, 
was  read  in  evidence  as  proof  of  the  liand  writing  of  one  witness,  the  other  witness 
not  being  known.  Les.  of  Thomas  v.  Horlocker,  1  Dall.  Rep.  14.  Vide  Jackson 
ex  d.  Livingston  et  al.  v.  Burton,  1 1  Johns.  Rep.  64. 

So  a  deed  executed  by  two  persons  with  one  wax  and  another  ink  seal,  and  at- 
tested by  one  witness,  and  proved  by  him  b>  fore  a  justice  of  the  peace,  was  admitted 
in  evidence  M'Dill's  les.  v.  M'Dill,  I  Dall.  Rep.  63.  Et  vide  Hamilton's  les.  v. 
Gallo-ivay,  ibid    93. 

But  if  there  be  two  witnesses  to  a  deed,  and  one  has  become  interested,  the  other 
must  be  produced  or  accounted  for,  before  the  hand  writing  can  be  proved.  Davi- 
son's les.  v.  Bloomer,  ibid.  123. 

In  an  action  on  a  note  under  seal,  and  attested  by  witnesses,  the  subscribing  wit- 
nesses must  be  cdled  or  accounted  for,  and  evidence  of  the  band  writing  of  the  de- 
fendant who  executed  the  note  cannot  be  received.  January  v.  Goodman,  ibid.  208. 
Et  vide  Shaver  \.  Ehle,  IC>  Johns.  Rep.  201.  Williams  v.  Davis  etnx.  1  Penn. 
Rep  277.  Allen  v.  Martin,  I  Car.  Law  Repos.  373.  Hart's  exrs.  v.  Coram,  3 
Bibb's  Rep.  26.  So  to  a  leceipl  to  which  tliure  is  a  witness.  Heckertet  al.  v.  Haine, 
6  Birm.  Rep.  16. 

Where  there  were  two  witnesses,  one  of  whom  was  dead,  the  plaintiff  was  al-  t 

lowed  to  account  for  the  absence  of  the  other  witness,  in  order  to  let  the  hand  wri- 
ting of  the  deceased  witness  be  proved.  Douglass  les  v.  Sa7iderson,  2  Dull.  Rep, 
116.     S.  C.  1  Yeates'  Rep.  15.    Vide  OUphnnt  v.  Taggart,  1  Bay's  Rep.  255. 

So  where  he  eludes  the  process  of  the  Court.  Baker  v.  Blount,  2  Huyiv.  Rep. 
404. 

AVhere  there  is  a  subscribing  witness  to  a  deed,  he  must  be  produced.  Turner  v. 
Stip,  1  Wash.  Rep.  322. 

In  an  action  of  debt  upon  bond,  where  the  witness  conld  not  be  found,  his  hand 
■writing  was  proved,  and  the  bond  given  in  evidence.  Jones  v.  Brinkley,  1  Hayrj. 
Rcp.^Q.  Cooke  etal.  v.  Woodrow,  5  Cranch.  Rep.  13.  JUUls  et  al.  v.  Twist,  8 
Johns.  Rep.  94. 

If  the  wife  of  the  obligor  attest  the  bond,  and  another  witness  who  makes  his 
mark,  the  Court  will  not  receive  evidence  of  the  hand  writing  of  the  wife  ;  but  after 
the  plaintiff  had  proved  that  there  was  such  a  witness  alive  about  the  date  of  the 
bond,  and  accustomed  to  make  his  mark,  the  hand  writing  of  the  obligor  was  per- 
mitted to  be  proved.     JSeliva  v.  BrickeWs  adtnrs.  I  Huyw.  Rep.  19. 

An  admission  in  an  answer  in  Chancery  of  a  bill  of  sale  on  which  complainant  re- 
lies, supersedes  the  necessity  of  proving  it  at  the  trial.  Wright  v.  Wright,  2  Lit- 
tell'a  Rep.  10. 

Where  the  subscribing  witness  cannot  be  produced,  proof  of  his  hand  writing  win 


PRIVATE  WUlTlNGa. 


118 

Chap.  II.  s.  4.  executed  ;(1)  *  or  It  appear  that  the  name  of  a  fictitious  person 

Subscribins;  |^^g  jjegQ  put  ^g  ^  witness  by  the  party  himself  vvho  executed  the 

'""^"'^^'    deed  ;(2)  or  the  person  really  attesting  was,  at  the  time  of  the 


(l)Grenierri. '  ^~~~~ 

Neale,  Peake  ^^  received  ;  and  when  that  cannot  be  had,  proof  of  the  hand  writing  of  the  obligor 
Dou^   216'       ^■'"  ^^  received.    Jones's  cidm.  v.  JHounfs  exis.  1  JIaifw.  Rep.  2.38.    Vide  Irving 
Lowe  V  J(il-    V.  li-ving,  2  Do.  27.      Cornneil  v.  Bvkkleij^  1  J\P  Cord's  Rep.  466. 
liffe,  1  Black.      As  to  the  identity  of  the  obligor  of  a  bond,  vide  Mushrow  &  Co.  v.  Graham,  1 
305.  I/ajpv.  Rep.  3GI. 

A  release  must  be  proved  by  the  subscribing  witness,  before  it  can  be  produced 
Skown' Peake '"  evide.ice.     Reading  v.  Meicalf,  Hard.  Rep.  535. 

N.  P.  23.  '  By  Statute  in  South  Carolina  passed  in  December,  1802,  proof  of  the  hand  wri- 

ting of  the  party,  in  cerlain  casts,  is  admissible  without  any  notice  of  the  subscribing 
witnesses.     \ Me  "2  Bay's  Rep.  507. 

If  a  subscril)ing  witness  recognise  his  hand  writing,  and  is  assured  that  he  nevei 
subscribed  without  due  and  proper  acknowledgment  by  the  parly,  it  is  sufficient. 
Pearson  et  al.  v.  fVightman,  1  Rep.  Const.  Ct.  S.  Car.  336. 

Where  tlie  witness  to  tlie  bond  liecomes  the  assignee,  it  is  not  sufficient  to  prove 
the  hand  writing  of  the  obligor  of  the  witness.  Johnson  ass.  cs'c.  v.  Knight,  1  Jliir- 
phetfs  Rep   293.     Uall  v.  Jii/num,  2  llayw.  Rep.  328. 

The  subscribing  witness  to  a  note  being  oul^of  the  State,  other  evidence  of  it  ad- 
missible, even  before  proving  the  hand  writing  of  such  witness.  Homer  v.  JVallii, 
nJMass.  Rep.  509. 

Comparisnn  of  hands  or  concessions  of  a  party  on  a  former  trial,  if  not  attached  to 
the  record,  cannot  be  given  in  evidence  to  p^-ovL-  an  insiroment,  while  the  subscrib- 
ing witness  thereto  is  within  the  reach  of  the  process  of  the  Court.  Pearl  v.  Allen. 
Tijl  Rep.   4. 

The  signature  of  a  party  to  a  release  cannot  be  proved  by  comparison  of  hand 
writing,  if  tiiere  be  a  subscribing  witness,  even  though  he  reside  without  the  Stale. 
Rich  v.  Trimble,  2  Tyl.  Rep.  349. 

Proof  of  the  hand  writing  of  the  obligor  of  a  bond  cannot  be  received,  when  the 
subscribing  witnesses  reside  within  the  U.  States.  Love  v.  Pay  ton,  1  Overtones  Rep , 
255. 

Quere.  Whether,  in  case  the  subscribing  witness  to  a  bond  reside  in  another  State, 
the  acktiowlcdgment  and  hand  writing  of  the  obligor  can  be  received.  Hempstead 
v.  Bird,  2  Day's  Rep.  293. 

Wliere  there  viarc  two  subscribing  witnesses  to  a  deed,  one  of  whom  was  proved 
to  be  dead,  and  the  other  living  wiihin  the  State,  but  too  aged  and  infirm  to  attend 
the  tiial,  ])roof  ot  his  hand  writing  was  held  inadmissible.     Jackson  ex  d.  Bond et 
al.  v.  Root,  18  .rohns.  Rep.  60. 
'  And  if  out  of  the  Stale,  proof  of  their  hand  writing  is  sufficient.     Sluby  v.  Cham- 

pliH,  4  Johns.  Rep.  401. 

•  It  is  not  necessary  that  he  should  actually  see  the  party  execute  ;  for  if  he  be  in 
an  adjoining  room,  and  the  party,  after  executing  the  deed,  bring  it  to  him, tell  him 
that  he  has  done  so,  and  dtsirc  him  to  subscribe  his  name  as  a  witness,  that  is  suffi- 
cient. Park  V.  Mears,  2  Bus.  ^  Pid.  21".  In  P/iipps  v  Packer,  1  Campb.  412, 
Lord  Ellexborough  held  that  if  the  subscribing  witness  denitd  the  execution,  the 
parly  could  not  be  permitted  to  give  other  evidence;  but  the  case  of  Grillier  v. 
J\eaie,  was  not  adverted  to :  and  in  two  subsequent  cases,  viz.  Fitzgerald  v.  FJsee, 
before  Lawkesce  J.  and  Lemo'-e  v.  Dears,  before  Le  Blanc  J  the  same  rule  was 
adopted  as  that  laid  down  by  Lord  Kenio.v.  Vid--  Campb.  635  and  635;  and  so 
the  Court  of  Coiumon  Pitas  also  held  in  Talbot  \.  Hodso7i,7  Taunt,  251.  (Vide 
Cnriis  v.  Hall,  1  Sovth.  Rep.  148.— Am.  Ed.) 


PRIVATE  WRITINGS.  j^^g 

execution  of  the  deed,  interested  in  it  and  continues  so  at  the  chap.  ii.  s.  4. 
time  of  the  tiial,(l)  i"  these  cases  proof  of  the  hand  writing  of  ^^'Ijscnbing 
the  party  will  be  sufticicnt  ;*  (A;)  and  if  the  instrument,  on  the     __ 


.  (1)  Swire  V 
Btll,  5  T 


Where  llie  obligor  and  subscribing  witnesses  to  a  bond   are  dead,  proof  of  the  Kep.  371 
hand  writing  of  the  witness  is  sufficient.     JHott  v    D'jtighty,  1  Johns.  Cas.  '230. 

Proof  of  the  confession  of  ihf  party  signing  a  promissory  note  was  received,  with- 
out calling  the  witness.  Hall  v.  Phelps,  2  Johns.  Jiep.  4.')1.  But  in  Fox  et  al  v. 
Reil  et  al.  3  Johns.  Rep.  47",  the  Court  held,  in  the  case  of  a  bond,  that  the  wit- 
nessrs  must  be  produced  ;  or  in  case  oi death  or  out  of  the  State,  his  hand  writing 
must  be  proved. 

f  AVhere  the  instrument  is  good  without  a  subscribing  witness,  it  is  not  necessary  to 
prove  his  hand  writing  beliTi-  the  plaintiff"  may  resort  to  other  evidence.  Homer  v. 
Wallis,  11  Muss.  Rep.  309. 

A  deed  cannot  be  proved  by  the  grantee  without  accounting  for  the  absence  of 
the  subscribing  witness.     lVillo7ig-hby  v.  Carleton,  9  Johns.  Rep.  136. 

Where  A.  and  li.  were  subscribing  witnesses  to  a  deed,  both  of  whom  were  deail 
at  the  time  of  trial,  and  the  hand  writing  of  A.  v/as  proved,  and  that  he  had  signed 
the  name  of  ^.  in  his  presence  and  at  his  request,  it  was  held  scifScient  proof  for  the 
deed  to  go  to  the  jury.    Jackson  ex  d.  Boyd  v.  Jjeiuis,  13  Johns.  Rep.  504, 

Proof  of  the  hand  writing  of  the  witness  to  an  instrument,  is  sufficient  evidence  of 
its  execution,  without  proving  the  hand  writing  of  the  party  to  it.  Pavker''s  exn. 
V.  Fassitfs  exr.  1  Hu7\  &  Johns.  Rep.  337. 

In  Wood  v.  Drury,  1  Lord  Raym.  Rep.  734,  it  was  sufficient  where  the  witness 
had  become  blind.  So  in  Bernett  v.  Taylor,  9  Ves.  Rep.  381,  where  he  was  incom- 
petent from  insanity.  Or  being  convicted  of  an  infamous  crime.  Jones  v.  JMason, 
2  Strange.  Rep.  833.  Or  where  the  witness  put  his  name  without  the  knowledge- 
or  consent  of  the  parties.  J\l^  Craiu  v.  Gentry,  3  Camp.  Rep.  tJ32.  6'.  P.  Hollo- 
7vay  v.  Lawrence,  1  Ruffin.  Rep.  49. — Am.  Ed. 

*  In  Cunliffe  and  -zw/f?,  administratrix,  v.  Sefton,  2  East,  183,  there  were  two 
subscribing  witnesses  to  a  bond,  one  of  whom  was  the  administrator  of  the  obligee 
and  a  plaintiff  in  the  action  ;  the  plaintiff  proved  that  diligent  inquiry  had  been  made 
after  the  other  subscribing  witness  at  the  places  of  residence  of  the  obligors  and  ob- 
ligee, and  that  no  account  could  be  obtained  of  such  a  person,  who  he  was,  where 
he  lived,  or  any  circumstance  relating  to  him  :  This  was  held  sufficient  to  let  in  evi- 
dence of  the  hand  writing  of  the  other  subscribing  witness,  who  was  interested  as 
plaintiff  on  the  record.-p 

f  Where  the  witnesses  to  a  written  contract  were  the  sons  of  the  defendant  who 
executed  it,  and  the  plaintiff,  the  day  before  the  Court,  inquired  of  the  defendant 
for  the  witnesses  in  order  to  subpcena  them,  and  was  falsely  told  by  the  defendant 
that  they  had  gone  a  journey,  this  was  held  not  sufficient  diligence  to  procure  them. 
J\Jills  et  al.  V.  Twist,  8  Johns.  Rep.  94. 

In  Cooke  etal.  v.  Woodrow,  5  Crunch.  Rep.  15,  where  inquiry  was  made  for  the 
witness  at  the  place  he  was  last  heard  of,  and  could  not  be  found,  evidence  of  his 
hand  writing  was  admitted. 

[k)  Any  deed  under  seal,  when  proved,  may  be  given  in  evidence.  M'DiWs  les. 
V.  M'Dill,  1  Ball.  Rep.  C3.  .S'  P.  Shrider's  les.  v.  JViirgan,ibid.  68.  But  in 
Fatdkner  v.  Les.  of  Eddy,  1  Binn.  Rep.  190,  Tilohmas,  C.  J.  said,  "  It  has  been 
generally  conceived  (hat  in  these  cases  the  law  was  carried  too  far."  And  by  the 
same  Judge,  in  Les.  of  Peters  et  al.  v.  Condron,  t2  Sei-g.  & R.  Rep.  83,  "this 
decision  has  been  considered  as  a  slip  in  the  hurry  of  business." 


150  PRIVATE  WRITINGS. 

Chap.  II.  s.  4,  face  of  it,  purport  to  be  sealed  and  delivered,  such  proof  alone 

Subscribing 


Witiit-sses. 


A  fit -td  is  not  evlileiice,  unless  it  be  first  shf  wn  that  the  grantor  possesses  some 
interest,  eilhe.  in  Law  or  Equity,  in  the  rB<<tter  in  controversy,  ibid.  Ftiidkner  v. 
Les  of  Edihj,  I  Binn.  Rep.  190.  Sed  contra,  Les.  of  Bioren  v.  Keep,  1  Yeates' 
Jiep.  440 

A  deed  proved  to  be  executed  by  several  of  the  grantors,  thoujjh  not  bv  ail  of 
them,  was  ruled  to  be  admissible  in  evidence.  Les.  of  Brown  v.  Long,  1  Yeates'' 
Rep.  162. 

A  dted  from  a  defendant  in  ejectraent  to  a  third  person,  e.xecuted  subsequently 
to  the  commenci-ment  of  the  suit,  is  admissible  in  evidence  to  support  the  credit  of 
a  witness,  who  hail  sworn  that  he  had  no  interest  in  the  land,  and  whose  credit  had 
been  impeached.     Richardson  v.  I.es  of  Stexvart,  4  Binn.  Rep.  198. 

Papers  purporting  'O  be  cancelled  bonds,  cannot  be  received  in  evidence,  v  ithout 
proof  thut  they  once  existed  as  bonds.     Lenox  v.  De/iaas  et  al.  1  Yeates^  Rep.  37. 

To  prove  a  lost  receipt  attested  hy  a  subscribing  witness,  he  must  be  produced,  or 
the  omission  to  do  so  must  be  supplied  in  the  s.»me  manner  as  if  the  paper  were 
produced.     JH'jMahon  v.  M^ Grady,  5  Serg.  &  R.  Rtp  314. 

WTiere  one  deposed  that  he  was  called  into  a  room  to  witness  the  execution  of 
articles  of  agreement,  that  he  did  not  see  the  vendor  sign,  seal,  or  deliver  the  pa- 
pers, but  that  he  saw  the  money  paid,  and  knew  the  hand  writing  to  be  that  of  the 
vendor,  it  was  ruled  sufficient  proof  of  the  vendor's  signature  to  let  the  instrument 
go  to  the  jury.     Lesher''s  les.  v.  Levan,  '2  Dad-  Rep.  96. 

A  subscribing  witness  swore  that  by  his  minutes  he  found  he  was  at  a  certain 
place  on  that  day,  and  that  upon  reference  to  the  warrant  of  attorney,  he  found  his 
name  in  his  own  hand  writing,  as  the  attesting  witness,  that  the  defeasance  to  the 
■warrant  was  in  his  own  hand  writing,  and  the  impression  of  the  seal  appf-ared  to 
have  been  taken  from  an  engraving  he  then  and  still  had  ;  an(\from  all  the  circum- 
stances, he  was  convinced  that  he  loas  present  and  -witnessed  the  execution  of  the  in- 
strumeiit ;  held  sufficient  proof  for  tlie  warrant  lo  go  the  jury.  Pigott  v  HollO' 
wot/,  1  Binji.  Rep.  436.  El  vide  Chvrchill  v.  Speight\t  exrs.  2  Haipv.  Rep  338. 
Denn  ex  d.  Gaston  v.  JMason,  1  Coxe's  Rip.  10. 

The  Court  may  decide  whether  a  paper  oflTerf-d  in  evidence  is  sufficiently  proved, 
or  they  mny  leave  it  to  the  jury  to  determine,  directing  them  not  to  consider  it  of 
any  validity,  unless  satisfied  of  the  proof.  Commissioners  of  Berks  v.  Ross,  3  Binn. 
Rep.  539.  Jl'  Corkie  v.  Binns,  5  Bo.  348.  Bogle  et  al  v.  SulUvant,  1  Call's  Rep. 
5G1. 

But  where  the  issue  is  on  the  authenticity  of  an  instrument,  upon  the  slightest 
proof  of  its  execution,  the  Court  are  bound  in  let  it  go  the  jury.  Berks  &  Dauphin 
Tump.  Road  Comp.  v.  flyers,  6  Serg.  &  R   Rep.  12. 

What  is  siifficietit  proot'of  the  exfcution  of  a  bond,  to  entitle  it  to  go  to  the  jury. 
Vide  Sigfriedy  Levan,  6  Serg.  U  R.  Rep  308. 
?.  A  deed  proved  b\  one  of  the  subscribing  vitnesses  to  have  been  executed  in  Ire- 
land, and  certified  by  the  Sovereign  of  Belfast,  under  the  seal  of  the  corporation,  is 
not  \idence  without  proi>f  that  such  seal  is  the  seal  of  the  corporation.  Fosterv. 
Shaw,  7  Serg.  &  R.  Rep.  156. 

A  deed  under  the  seal  of  a  hanking  corporation  within  this  State,  and  duly  incor- 
porated, is  not  evidence,  unl-  ss  the  seal  be  pioM'l.  Leazure  v.  Hidegas,  7  Serg. 
SJ  R.  Rep.  3L3.  Et  \k\e  Jacksoti  ex  d.  Martin  el  al.  v.  Pratt,  10  Johns.  Rep. 
381. 

An  instrument  which  is  denied  must  be  proved  before  it  is  sent  to  the  jury.  J\ieil 
T.  Miller,  2  Root.  Rep.  1 17.     Canfieldv   Sqidre,  ibid.  300. 

Where  a  deed  was  duly  executed  and  acknowledged,  but  retained  by  the  grantor 
with  the  consent  of  the  grantee,  by  way  of  security,  until  the  consideration  money 


PRIVATE  WRITINGS. 


151 


is  strong  evidence  for  a  jury  to  presume  that  the  other  formali-chap.  n.  s.  4, 

Subscribing 
VVilnesses. 


was  pAJd,  the  grantor  <lipd,  liaviiig  devised  the  premises,  and  the  deed  was  found 
among  his  papers,  it  was  hehl  there  was  no  actual  delivery  to,  or  acceptance  of,  the 
deed  by  tht-  grantee,  and  therefore  nothing  passed  by  it.  Jackson  ex  d.  JM'Crea 
V.  Diinlap,  1  Johns.  Cas.  114. 

But  in  the  case  of  a  release,  the  Court  said  a  formal  delivery  was  not  necessary, 
if  there  be  any  act  evincing  such  inltntion.     Goodrich  v.  Walker, ibid.  250. 

In  JKurth  Carolina,  an  action  of  doht  was  brought  on  a  sealed  instrument  without 
any  subscribing  witness,  the  party  was  allowed  to  prove  the  hand  writing  of  the  ob- 
ligor, and  the  Court  decided  that  attestation  was  not  necessary  to  prove  the  validity 
ofa  deed.     Ingram  v.  Hall,  I  Hayw.  Rep.  193. 

But  where  a  sealed  instrumeni  was  executed  by  two,  and  there  appeared  to  be 
an  attesting  witness,  and  proof  was  offered  that  one  of  the  obligors  acknowledged 
the  execution  by  both,  this  was  held  insufficient.  Clements  &  Co.  v.  Eason  et  al. 
ibid.  IS.     Fox  et  al.  v.  Reil  et  al.  3  Jolms.  Rep.  470. 

In  JMilivard  v.  Temple,  1  Cump.  Rep.  375,  an  action  of  debt  on  bond,  the  wit- 
ness's hand  writing  being  acknowledged.  Lord  Ellknborodgh  said  that  it  might  be 
taken  as  a  presumptive  admission  of  all  he  professed  to  attest  and  would  have  been 
called  to  prove. 

Where  the  father  of  defendant,  after  executing  a  deed,  left  it  on  the  table,  where 
it  remained  all  night,  and  in  the  morning  took  it  up  and  put  it  away,  it  was  held, 
that  though  it  was  probable  he  signed  it,  yet  there  was  no  evidence  of  a  delivery, 
/farf/'s  exrs.  v.  Ward, 9,  Hayw.  Rep.  226. 

In  an  action  on  a  single  bill,  the  subscribing  witness  swore  that  his  name  sub- 
scribed thereto  was  in  his  own  hand  writing,  and  that  he  attested  a  note  from  A.  to 
£.  who  assigned  to  the  plaintiff,  and  that  he  attested  no  other,  that  he  did  not  be- 
lieve the  signature  to  the  note  to  be  in  .-3's  hand  writing,  nor  did  he  remember  that 
there  was  a  seal  to  it :  these  circumstances  were  left  to  the  jury  to  determine  whe- 
ther sufficient  evidence^     Churchill  v.  Speight's  exrs.  2  Hayw.  Rep.  338. 

Where  circumstances  are  proved,  which  could  not  have  t-xislod  unless  the  prin- 
cipal fact  also  existed,  such  circumstances  are  proofs  of  the  principal  fact    ibid. 

A  cestui  que  trust  can  otdy  be  barred  by  barring  the  estate  of  the  trustee.  Choi- 
mondely  v.  Clinton,  2  JMerivale's  Rep.  258. 

Proof  of  a  deed  by  a  surviving  grantor  in  1750,  who  proved  that  the  other  grantors 
■were  dead,  was  held  sufficient,  it  being  an  ancient  deed  and  jirior  to  thi-  Aclof  1771 
relative  to  the  proof  of  deeds.  Jackson  ex  d.  Uardenberg  et  al.  v.  Schoonmaker,  2 
Jolims.  Rep.  230. 

Where  the  hand  writing  of  two  of  the  witnesses  to  a  will  ^UMiSt^'oveil,  and  tlie 
third  had  signed  the  initials  of  his  name,  and  the  testator  had  made  his  mS!<t]i^n  the 
trial  in  180G  a  witness  swore  that  he  saw  one  of  the  witnesses  to  the  will  make  his 
mark,  and  from  a  comparison  of  the  two,  he  believed  the  mai-k  to  the  will  was  affix- 
ed by  the  witness  to  it,  and  proof  of  one  of  the  other  witnesses  having  declared  the' 
will  was  duly  executed,  these  circumstances  were  hehl  sufficient  evidi-iice  of  tli-^  ex- 
ecution of  the  will,  where  accompanied  with  evidence  of  possession  by  the  devisees 
V7uler  the  ■will.    Jackso7iex  d.  Van  Dusen  v.  Van  Du^en,  5  Johns.  Rep.  14k 

In  a  special  verdict  in  ijectment,  the  jury  having  fouiid  twenty  years'  possession 
in  the  plaintiff,  and  that  one  of  the  title  deeds  wns  not  indented  and  expressed  no 
consideration,  is  not  sufficient  to  prevent  a  jiidgment  in  his  favour.  Kinjiey  v.  Be- 
verly,  2  //.  cjf  Munf.  Rep.  318. 

A  deed  sixty-thi'ce  years  old,  unaccompanied  by  possession,  was  admitted  in  evi- 
dence, upon  proof  of  one  who  had  known  one  of  the  witnesses,  had  seen  many  deeds 
and  papers  signed  by  him,  and  from  them  believed  his  name  to  the  deed  to  be  his 


f 


15g  PRIVATE  WRITINGS. 

Chap.  II.  s.  4.  ties  were  complied  with.(/).     It  has,  intleetl,  been  said  in  one 

w'itness'es"'   l>ook  of  great  authority,(l)  and  repeated  in  anotlier  of  more  mo- 

dern  date,  that  "  though  the  deed  be  produced  under  hand  and 

(i)Giil>.  Law  "seal,  and  the  hand  of  the  party  be  proved,  yet  that  is  no  full 

]s,v.  101.  «  proof  of  the  deed,  for  the  delivery  is  necessary  to  the  essence 
Bui  N  P  254  •'  *'  . 

"of  the  deed,  and  there  is  no  proof  of  the  delivery  but  by  a  wit- 

"  ness  who  saw  it ;"  but  I  conceive  that  the  authority  of  this  dic- 
tmn,  supposing  it  to  extend  to  a  case  where  there  is  no  subscrib- 
ing witness,  is  destroyed  by  subsequent  decisions.  At  the 
time  when  writing  was  but  little  practised  among  men,  and 
when  contracts  were  authenticated  by  seals  only,  it  might  be 
proper  to  insist  on  having  some  person  who  was  present  at  tlie 
execution ;  for  seals  might  be  so  easily  counterfeited,  or  affixed 
by  any  person,  that  it  was  requisite  Courts  of  Justice  should  be 
particularly  careful  in  receiving  evidence  of  them ;  but  the  cha- 
racters of  hand  writing  are  in  general  so  distinguishable  from 
each  other,  that  they  cannot  easily  be  mistaken.(m) 
(2)  12  Vin.  When  the  subscribing  witness  is  dead,  insane,(2)  or  absent  in 
Evidence,       ^  foreign  country,(3)  at  the  time  of  the  trial,  whether  for  a  per- 

pl.  12.       ' — — -. 

f  SICoelilan  w  1'^"''   writing,  though  he  never  had  seen  the  witness  write.     Thomas's  les.  v.  J3br- 

Wil'iamson      locker,  1  Dull.  Hep.  14. — Am.  Ep. 

Dougl.  93.  ' 

Holmes  v.  (0  "^^^  delivery  is  an  essential  requisite  to  a  deed.    Hatch  et  al.  v.  Hatch  el  aL 

Pontin,  Peake  9  Jlioys.  iZep.  307.    JMaynard  v .  JMaijnard  et  al.  10  i)o.  456.*    Harrison  et  al.  w 

N.  P.  99.  Trustees  of  Phillips'  Academy,  12  Bo.  456. 

iiarnes  v.  g^^  jj  j^  ^^^^  essential  to  the  valid  delivery  of  a  deed  that  the  grantee  be  present, 

Irompowsky,       ,    ,       .    ,  ,  .   ,     ..'  ,,  ■       •  .,  ■,    V.       j 

7T  lien  2C5  *""  that  it  be  raade  to  or  accepted  by  liim  personally  at  the  time.  loid.    Et  vide 

Adams  7-.  Goodrich  v.  Walker,  1  Johns.  Cas.  250.  Belden  et  al.  v.  Carter,  4  Day's  Rep. 
Kerr,  1  Bos.  C6.  Verplank  et  al.  v.  Steny  et  ux.  12  .Johns.  Rep.  536.  Haggles  v.  Lawson  et  al. 
h  Pul.  360.      ,3  jj^  285. 

Possession  by  the  grantee  or  his  heirs  of  an  ancient  deed  is  evidence  of  delivery. 
JMallory  V.  Aspimvull,  ^  Day's  Rep  280.  Souverbyeet  tuc.  v.  Arden  et  al.  1  Johns. 
Ch.  Cas.  240. 

The  Cliancello^^^tlie  case  of  Souverbye  ct  ux.   v.  A'^dcn  et  al.    1  Johis.  Ch. 
Rep.^^^^l^^^^K^cne.vA\  principle  ot  law  is,  that  the  formal  signing,  sealing,  and 
lerfeclion  and  consuimnation  of  the  deed,  and  it  lies  with  the  grantor 
f^ily  that  tl;e  appearaiicss  were  not  consistent  with  the  truth." 
Tde  The  Trustees  of  the  JMcthodist  Episcopal  Church  et  al.  v.  Jacqiies  et  al. 
'hid.  450. 
Delivery  of  a  release.     A^ide  Fitch  et  al.  v.  Forman,  \i  Johns.  Rep.  172. 
Sealing  -ACiA  delivery  is  all  that  is  essential  to  a  good  deed,  and  on  proof  of  the 
hand  writing  of  the  obligor,  the  jury  may  presume  the  sealing  and  delivery.     Long 
\.  Ramsey,  1  Seig.  &  R.  Rep.  72. 

{m)  A  written  or  ink  seal  is  good.  M- Dill's  les.  v.  M'Dill,  1  Dall.  Hep.  63.  Alex, 
ander  et  al.  v.  Jamieson  et  al.  5  Bijin.  Rep.  238.  Long  v.  Ramsey  exr.  I  Serg. 
£jf  R.  Rep.  72.  Jo7ies  et  al.  v.  Logwood,  1  Wash.  Rep.  42.  But  in  Baird  et  al. 
V.  Bluigrove,  ibid.  170,  it  was  said  there  must  be  some  expression  in  the  deed  to 
give  it  that  effect.  Atistin's  adm.x.  v.  Wluilock's  exrs.  1  Munf.  Rep.  48".  Et 
vide  Jsfe^vbold's  exrs.  y.  Lamb,  2  South.  Rep.  449.    But  in  the  case  of  Overseeri 


PRIVATE  WRITINGS. 


153 


mancnt  residence  or  temporary  purpose(l)  (n)  *  or  by  the  com-ciiap.  n.  s.  4. 
mission  of  some  crime, (2)  or  the   accrual   of  some  interest/S)  S'li.scribing 

Wiltiesses. 


subsequent  to  the  execution  of  the  instrument,  he  has  become  an 
incompetent  witness;  proof  of  his  hand  writing  is  the  next  best/,wi,,ij|^g^ 
evidence  which  can  be  given.fo)     In  the  first  case,  viz.  where  uia-'kbum, 
he  is  dead,  this  alone  has  been  held  to  be  sufficient ;  but  in  the" 
others,  it  has  been  usual,  and  in  one  case  was  held  to  be  neces-- ^)  J"n'"sr'. 
sary,t  to  prove  the  hand  writing  of  the  party  to  the  deed  also  ;(4)3Str).'833. 

and,  in  all  these  cases,  a  foundation  must  first  be  laid,  by  prov-,  ,  „ 

,,...,.,,.  ,  "^  '  (3)  Goss  V. 

ing  the  situation  in  which  the  witness  stands.  Tracv, 

1  I'  Wil.289. 

G'lflfrey  v. 
of  Hopewell  v.   Overseers  of  Annvell,  1  Halst.  Rep.  169,  it  was  decided   not  to  be  Noriis, 
good  except  upon  instruments  tor  thepajmciit  of  money,  under  the  Statute  oi  JVew     '"'"*•  ^^' 

Jersey.  ,    ^    .       .  (4)  Vide 

It  by  the  laws  and  usages  of  a  country,  an  L.  S.  in  ink  be  ust-d  to  instruments  in-  Wallis  v.  De- 
stead  of  seals,  such  instruments  may  be  declared  on  as  sealed  instruments.     JMere-  lanciM,  7  T. 
dith  V.  Hinsdale,  2  Caines'  Rep.  361.     Sed  vide  contra,  Warren  v.  Lynch,  5  Johns-  Rt^P-  266, 

i?eft.  237.-AM.  Ed.  ""I*^  (f-)       , 

■*  Gill).  Law    • 

(li)  In  an  action  on  a  promissory  note,  to  which   there  is  a  subscribing  witnpss  ''* 

■who  had  become  insane,  held  that  proof  of  his  hand  writing  was  sufficient  to  prove 
<he  making  of  it.  Currier  v.  Child,  3  Camp-  Rep.  283.  Vide  JVdlso7i  v.  PVhit- 
tall,  1  Jiam.  &  Aid.  Rep.  IS.— An.  Ed. 

•  Now  by  Stat.  26  Geo.  3,  c.  57,  s,  58,  deeds  executed  in  the  East  Indies,  and  at- 
tested by  pel  sons  resident  there,  may  be  proved  by  eviilence  of  the  liai.il  writing  of 
the  obligor  and  witnesses,  and  that  the  witnesses  are  resident  there  :  and  tlie  like 
proof  is  made  sufficient  evidence  in  the  Hast  Indies  of  any  deed  executed  in  Great 
Britain.  In  Crosby  v.  Percy,  1  Taxint.  364,  the  Court  of  Com.  Pleas  went  still 
further,  and  held  that  even  where  the  witness  had  absconded  to  avoid  his  creditors, 
and  could  nor,  aftfr  fair  and  diligent  inquiry,  be  found,  the  proof  of  his  hand  writing 
was  sufficient.  Mansfield,  C.  J.  said  the  law  had  been  relaxed  m  thecourse  of  his 
practice,  and  the  balance  of  convenience  was  in  favour  of  the  extension,  and  that 
more  inconvenience  resulted  from  excluding  the  secondary  evidence  thaw  from  ad- 
milting  if ;  and  the  same  rule  was  adopted  b\  Lord  Ellenhorough  in  the  case  of 
Wardle  v.  Fermor,  2  Camph.  282,  where  the  subscribing  witness  hJid  absconded 
from  a  commission  of  bankruptcy  taken  out  against  him.  So  where  a  man  was  serv- 
ing on  board  the  navy,  proof  of  his  appearing  by  the  Admiralty  books  to  be  on  board 
a  ship  then  at  sea,  and  his  mother  also  being  catlid  to  prove  his  identity,  was  held 
sufficient  to  let  in  evidence  of  his  hand  writitig.    Parker  v.  Hoskins,  2  Taunt.  223. 

(o)  Vide  the  case  in  I  Phillimore's  Rep.  280. — Am.  Eo. 

f  In  the  case  of  Adams  v.  Kerr,  1  Bos  &  Pul.  360,  where  a  bond  was  executed 
abroad,  one  witness  was  dead,  and  the  other  lesidtnt  abroad,  proof  of  the  hand  wri- 
ting ol  the  deceased  witness  was  held  sufficient,  without  proof  ot  the  hand  writiiigof 
the  other,  or  the  obligee.  But  in  Wallis  v.  Delancey,  where  a  bond  was  executed  at 
•Aiew  Yorkin  the  presence  of  two  witnesses,  and  the  hand  writing  of  one  who  was 
abroad  was  proved,  Lord  Kenyon  held  that  evidence  should  lie  ^iven  of  the  hand 
■writing  of  the  obligor  also,  which  was  given  accordinj^ly  ;  and  it  bein.<  olijecied 
that  the  hand  writing  of  ,,V/o;'/om,  the  other  subscribing  witness,  should  be  proved, 
and  that  he  was  abroad  or  dead,  bis  Lordship  thought  tti:it  snme  evidence  nf  that 
iort  was  necessan.  WlKieupon  the  piamtilFprov  d  tiiat  lliere  li;id  been  a  m'tn  of 
he  name  oi  Morion,  who  had  lived  as  clerk  with  the  other  subscribing  witness,  but 

X 


^5^  PRIVATE  WRITINGS. 

C4i.'tp.  n.  s.  4.     It  frequently  happens,  that  there  are  more  than  one  witness  to 
Ha^dwluing.*  deed,  and  in  the  case  of  a  will  of  lauds,  the  Statute  of  Frauds 

„„_____  expressly  requires  three  witnesses ;  nevertheless,  in  these  cases, 
it  is  sufficient  if  one  be  called ;  but  if  they  are  all  dead,  the 
deaths  of  all  should  be  proved  before  evidence  is  received  of  the 
hand  writing  of  either,  for  until  it  appears  that  neither  of  them 
is  living,  the  other  is  not  the  best  evidence  which  the  nature  of 
the  case  will  admit  of. 

But  it  may  be  asked,  how  is  the  hand  writing  of  a  man  to  be 
proved,  where  no  one  saw  him  write  his  name  to  the  instru- 
ment, which  is  to  be  produced  in  evidence  ?  In  this  case,  it  is 
plain  that  no  positive  or  direct  evidence  of  the  fact  can  be  given, 
and  therefore  the  law  still  adhering  to  its  general  rule,  that  the 
best  evidence  the  nature  of  the  case  will  admit  of  is,  sufficient,  is 
satisfied  with  circumstantial  and  presumptive  evidence.  The 
hand  writing  of  every  man  has  something  peculiar  and  distinct 
from  that  of  every  other  man,  and  is  easily  known  by  those  who 
have  been  accustomed  to  see  it,  and  therefore  the  belief  of  such 
persons  is  always  received  as  presumptive  evidence  of  the  fact, 

(I) Dr.  lien-  either  in  civil  or  criminal(l)  cases.     But  the  person  who  speaks 

rBuiT?642.    to  that  belief,  must  have  such  a  knowledge  as  enables  him  to 
form  it,  such  as  having  seen  the  party  write,  or  having  received 

(2)  Gould  V.   letters  from  him  in  a  course  of  correspondence  ;(2)  barely  hav- 

1  Black.  384.  ing  seen  letters  purporting  to  be  franked  by  him,(3)   or  other 
\r  papers,  which  he  has  no  authentic  information  are  of  the  party's 

Pitt,  esq.        hand  writing,  is  not  sufficient. 

K.  B  Sittings     jj,  forming  this  belief,  the  witness  ought,  in  civil  cases,  to 

atWestm.  =>  .  .  .* 

after  Easter  Speak  Solely  from  the  impression  which  the  hand  writing  itself 
ST^Geo  3  makes  upon  his  mind,  without  taking  into  his  consideration  any 
Append.  extrinsic  circumstance ;  and  therefore  in  a  case(4)  where  a  wit- 
(4)  Dacosta  t).  "^^^  ^^^^  ^^^^  '^^  should,  looking  at  the  hand  writing,  think  it 

Pj-m.  Append  ^ 

his  christian  name,  or  hand  writing,  or  what  was  become  of  him,  was  not  proved  ; 
anii  on  objection  that  he  might,  for  aught  appearing  to  the  contrary,  be  alive  and  in 
Englaml,  Lord  Keston  held  the  eviiience  to  be  sufficient,  for  this  being  a  foreign, 
transaction,  though  perhaps  the  evidence  was  capable  of  being  more  perfect,  yet  it 
■was  sufficient  and  reasonable  evidence  to  go  to  the  jury  at  least,  unless  rebutted  by 
some  evidence  on  the  other  side.  But  in  CunUffev.  Sefton,  ante.  149,  and  Princev, 
Slackburn,  2  East.  250,  where  the  witness  was  abroad  at  the  time  of  the  trial,  proof 
of  the  hand  writing  of  the  witness  interested  in  the  one  case,  and  absent  in  the  other, 
Was  considered  to  be  sufficient,  and  the  plaintiff  vfas  not  called  upon  to  prove  the 
hand  writing  of  the  obligor  ;  so  that  it  seems  the  J^.  P.  case  of  Wallis  v.  Delancey, 
and  the  Act  of  Parliament,  as  to  proof  of  deeds  executed  in  the  East  Indies  (which 
passed  before  it  was  clearly  settled  that  the  hand  writing  of  the  subscribing  witness 
might  in  such  cases  be  proved,)  are  the  only  authorities  which  shew  that  evidence  of 
the  hand  writing  of  the  obligor  is  necessary. 


PRIVATE  WRITINGS. 


155 


was  that  of  the  party  whose  name   it  bore,  but  that  from  his  Chap,  ii.  s.  4. 
knowledge  of  him  he  thought  he  could   not  have   signed  such  3.^^^^°'^^^^ 

paper,  it  was  held  that  this  was  prima  facie  evidence  of  the 

hand  writing;  and  on  the  same  principle,  where  it  was  contend- 
ed, that  the  paper  produced  was  the  forgery  of  a  third  person, 
evidence  that  such  third  person  had  forged  the  defendant's 
name  to  other  instruments  of  a  similar  nature,  was  held  not  to 
be  admissible.(l)*  (i)BalcettiT'. 

The  process  by  which  the  mind  arrives  at  the  belief  of  hand  ^t  'p'^^^^^''® 
writing,  being  the  recollection  of  the  general  character  from  an  G<  ati  v.  Lord 
acquaintance,  by  frequently  seeing  it,  and  not  from  the  forma- jj|,"*j"°^ 
tion  oi  particular  letters,  or  a  single  inspection.  Courts  of  Jus- 
tice have  wisely  rejected  all  evidence  from  mere  comparison  of 
hands  unsupported  by  other  circumstances;  they  will  not,  there- Macfersonw. 
fore,  permit  two  papers,  one  of  which  is  proved  to  be  the  hand  Peak^N.  P. 
writing  of  a  party,  to  be  delivered  to  a  iury  for  the  purpose  of'^^. 
comparing  them  together,  and  thence  interring  that  the  other  is  Woodiey,  ib. 
also  of  his  hand  writing.     But  in  cases  where  the  antiquity  of""'^^"-) 
the  writing  makes  it  impossible  for  any  person  to  prove  it,  from 
having  actually  seen  the  person  write,  and  where  the  instrument 
acquires  a  degree  of  authority  from  the  place  in   which  it  is 
found,  the  evidence  of  a  man  who  has  had  opportunities  of  mak- 
ing himself  acquainted  with  the  character,  hj  frequent  inspec- Per  Hard.  C. 
tion,  has  been  admitted:  and  therefore,  where  a  parson's  bookBui,  N.  p.' 
was  produced  to  prove  a  modus,  he  having  been  long  dead,  a 
vv^itness  who  had  examined  the  parish  books,  in  which  his  name 
was  written,  was  permitted  to  swear  to  the  similitude  ;  for  it 
■was  the  best  evidence  the  thing  was  capable  of.     And  in  some 
later  cases,  ancient  documents,  coming  out  of  the  proper  custo- 
dy, have  been  inspected  in  Court,  for  the  purpose  of  shewing 

•  Graft  V.  Lord  Broiunlo-w  Bertie,  administrator  of  Lady  Mary  Greathead,  Sit- 
tings  at  Westm.  after  Trin.  1777,  M.  S.  Debt  on  bond,  plea  non  en  factum.  The 
bond  was  attested  by  Dudley  only,  and  he  beins;  d  ad,  his  hand  writinsj  proved.  For 
the  defendant,  it  was  ofFered  to  prove,  that  other  bonds  attested  by  Dudley  were 
forged,  which  bonds  were  produced  ;  but  Mr.  Diinmiig,  for  the  plain'ifF,  htrnngly 
objected  to  this  evidence,  because  plaintiff  could  not  be.  prepared  to  support  the  au- 
thority of  other  deeds.  Lord  M-^nsfikld. — Dadley^s  hsnd  is  proved  as  evidence 
of  all  he  would  have  said  if  living,  and  if  he  had  been  here,  they  might  hi've  produc- 
ed other  bonds,  and  asked  whether  they  were  his  signature,  and  whi  thei-  he  saw  the 
bonds  executed  ;  and  if  he  had  said  yes,  tliey  might  have  called  other  witn-sses  to 
prove  that  they  were  not  given.  Lord  Mansfield,  at  last,  rejected  the  evi<lf  nee, 
•with  liberty  for  the  defendant  to  move  the  Court ;  but  the  jury,  on  evideuce  that 
■was  given,  found  a  verdict  for  the  defendant,  Qwere,  Would  not  the  proper  evi- 
dence in  this  case  have  been  the  general  character  of  Dudley;  and  that  the  per- 
■ons  acquainted  with  it  would  not  hare  believed  him  on  his  oath  ?    Vide  post. 


15(3  PRIVATE  WRITINGS. 

Chap.  II.  s.  4.  that  the  paper  in  question  is  of  the  same  hand  \rriting.(l)    In 
Prooi  of     Qjjg  j,jjgjj  t^ijg  receipt  of  a   former  rector,  dated  forty   years  be- 

fore,  lor  a  money  payment  in  lieu  of  tithes,  given  to  a  person  oi 

r  1). More wonfi the  same  name  as  the  defendant,  residing  at  the  same  place,  and 
11. \\'oori,ciie(i  coming  out  of  the  custody  of  the  defendant,  was  permitted  to  be 
Ami  Ro' d~m.  read,  though  there  was  no  distinct  evidence  of  the  hand  writing 
Bnmn. Raw  of  the  rector,  of  the  degree  of  relationship  between  the  defendant 

lins,  7  East,  ,     ,  ^         i  ^i  •    .  •  ,^s    •     ,    • 

279  and  the  person  to  whom  the  receipt  was  given  ;(2)  but  m  ano- 

Aiiipost,       ^her  case,  a  paper  writing,  purporting  to  be  a  receipt  of  more 

Appendix.  oil  o  ^  I 

than  fifty  years  old,  was  by  three  barons  (dissent.  Wood)  consi- 

(2)  1  fi-t.  V.  jppej  as  inadmissible,  until  proof  was  given  of  the  hand  writing, 
i2  Pnc.,  .)U7.  or  of  the  death  of  the  party,  and  the  relative  situation  of  the 

(3)  Manby  v.  Parties  to  the  rector.(3) 

Curtis,  Where  witnesses  have  been  called  to  prove  the  similitude  of 

■    "*^^'  '  ■  hand  writing,  and  other  witnesses  have,  from  the  same  premises, 

(4)  \iies-  drawn  a  different  conclusion,  it  has,  in  some  cases,(4)  before  a 
RoMcii,  K.  B  jury  whose  habits  of  life  have  accustomed  them  to  the  sight  of 
SittitissHt       hand  writing,  been  permitted  to  hand  up  other  papers  confes- 

We-timn.  ai-  »  •  i-  •  .  i 

terTnn.  Tm.sedly  written  by  the  party  for  them  to  inspect  and  compare 
1  F^'  ^r  '^  them  together  ;  this  mode  of  proceeding,  however,  seems  rather 
815,  s.  C.  a  departure  from  the  strict  rules  of  evidence,  and  before  an  il- 
Da  '^'°^''' J^^  J  literate  jury  would  probably  not  be  adopted. 

In  one  case(5)   which   came  before  the  Court,  the  party  who 

dem.  Revet*'  Contended  that  the  hand  writing  was  a  forgery,  was  permitted, 

t>.  Braham,     after  a  great  deal  of  other  evidence,  to  examine  a  clerk  at  the 

*    ■    *^^'       post-office,  whose  business  it  was  to  inspect  franks  and  detect 

forgeries,  to  prove  that  from  the  appearance  of  the  hand  writing, 

it  was,  in  his  opinion,  a  forgery,  and   not  a  genuine  hand  writ- 

(6)  Gary  v.     ing ;  but,  in  a  subsequent  case, (6)  Lord  Kenyon  said  that  such 

itt,  supra,     evidence  was  wholly  inadmissible  ;  and  observed,  that  though  in 

Bevet  V.  Braham  it  was  admitted,  yet  that  in  his  direction  to 

the  jury,  he  had  laid  no  stress  at  all  upon  it. 

The  analogies  of  law,  however,  appear  strongly  to  support  the 
admissibility  of  this  evidence  ;  for  opinion,  founded  on  observa- 
tion and  experience,  is  received  in  most  questions  of  a  similar 
nature.  There  is  a  certain  freedom  of  character  in  that  which 
is  original,  which  imitation  seldom  attains,  and  the  want  of  that 
freedom  is  more  likely  to  be  detected  by  one  whose  attention 
has  been  directed  to  the  subject,  than  by  another  who  has  never 
given  his  mind  to  such  pursuits.  It  does,  therefore,  seem  rather 
too  much  to  say,  that  such  evidence  is  in  all  cases  inadmissible, 
though  it  certainly  ought  to  be  received  with  great  caution,  and 
meet  with  little  attention,  unless  as  corroborating  other  and 
stronger  evidence. 


PRIVATE  WRITINGS, 


157 

The  true  distinction  seems  to  have  been  taken  by  Mr.  Baronchap.  ii.  s.  4. 
HoTHAM.on  the  trial  of  the  King  v.  Cator,{\)  where  the  defendant    /'!'^'"'°f 
being  indicted  for  publishing  a  written  libel,  and  a  person  from  _____J_ 
the  post-office  who  had  never  seen  him   write,  being  called  as  a/l^  ji,.xt,. 
witness,  that  learned  Judge  permitted  the  witness  to  give  g-ene- ^"'"i'.  4Esp, 
ral  evidence,  that  the  writing  appeared  to  be  in  a  feigned  hand  j      ' 
but  when   the  witness   was  asked,  whether,  on  comparing  such 
hand   writing  with  papers  proved  by  others  to  be  the  genuine 
hard  writing  of  the  defendant,  he  could  say  it  was  the  disguised 
hand  of  the  same  person,  his  Lordship  rejected  the  evidence  at- 
tempted to  be  introduced  by  such  examination  ;  because  it  arose 
only  from  comparison  of  hands.   We  may,  therefore,  I  think,  still 
consider  the  case  of  Revet  v.  Braham,  as  an  existing  authority 
to  shew,  that  for  the  purpose  of  proving  generally  and  in  the  ab- 
stract, that  a  hand  writing  is   not  genuine,  such  evidence  is  ad- 
missible, though,  as  I  said  before,  deserving  of  little  attention; 
for  the  want  of  freedom  in  the  hand  writing,  and  the  painting  of 
the  letters,  as  it  was  called  by  the  witness  in  that  case,  may 
arise  from  the  infirmity  of  the  writer,  his  not  having  formed  a 
fixed   character  ;  or  many  other  causes  Avhich   a  person,  unac- 
quainted with  the  genuine  hand  writing,   cannot  take  into  his 
consideration.     A  tradesman  who  is  daily  making  entries  in  his 
books,  will  acquire  a  more  free  and  steady  character,  than  an  il- 
literate person  who  can   but  just  write  his  name  ;  and   a  man, 
whose  habits  of  life   lead  him  to  write   much  oftener  and  with 
less  care,  will  get  still  more  of  a  peculiar  character  in  his  hand 
writing;  all  which  circumstances  should  certainly  be  taken  into 
the  consideration  of  a  jury  before  they  give  weight  to  such  evi 
dence.(jo) 

(/))  The  hand  writing  of  the  maker  and  endorser  of  a  note  may  be  proved  by  wit- 
nesses from  their  previous  knowledge  of  his  hand  writing,  derived  from  hR\ing  seen 
the  person  write,  or  from  authentic  papers  rect-iv'  d  m  the  cours*'  of  business  ;  but 
if  the  witness  has  no  previous  knowledge  nt  the  hand  wi-itiiig,  he  cannot  be  permit- 
ted to  decide  upon  it  from  comparison  of  hands.  Titford  v.  Knott,  2  Johns.  Cas. 
211.  iS.  p.     Jackson  ex.  d  Van.  Deusen  et  al.  v.  Van  Dusen,  5  Johns.  Rep.  144. 

Quete,  Whether  papers  signed  b)  the  party,  and  ailmitted  to  be  genuine,  can  be 
delivered  to  the  jury,  to  determine  b\  comparison  as  to  the  genuineness  of  the  paper 
in  question.  e6j</.  2  Johns.  Cas. 'ill.  Olmf^tedv.  Stewart,  13  Johns.  Hep. '^38. 

The  coiifidt  ntial  clerk  of  the  plaintiff  uas  admitted  to  prove  a  correspondence,  by 
letters,  between  the  plaintiff  and  delendjint,  who  resided  in  Londoyi,  and  to  testify- 
that  from  the  knowledge  he  had  acjuired  from  the  l<tt-  rs  of  the  defendant  received 
during  this  correspondence,  he  believed  the  endorsement  in  question  to  be  the  h:ind 
writing 'if  the  delendant,  though  he  had  never  seen  tbc  ilefenrlant  write.  Titford 
V.  Knott,  2  Johns.  Cas.  211.     The  State  v.  ^ll^n.  1  liiij^n.  Rep.  6. 

Comparison  of  hands  not  adn\issible  as  siibsidiaiv  testimony,  upon  the  clashing  of 
parol  proof.    Haskinsy.  Stuyvesant,Jhith.  JST.  P.'il,     ' 


458  PRIVATE  WRITINGS, 

Chap.  U.  s.  4.      In  the  beginning  of  the  present  section,  I  had  occasion  to  ob- 
Ot  tiotice  to    serve,  that  where  an  original  instrument  was   in  the  hands  of 

pi-oduce  .  ®.  _ 

writings,     the  party,  against  whom  it  was  intended  to  be  given  in  evi- 

The  hand  writing  of  a  person  long  since  deceased,  may  be  proved  by  comparison. 
ibid.  98,  n.  a. 

The  hand  writing  of  a  surveyor  to  an  ancient  survey,  may  be  proved  by  a  witness 
who  has  become  acquainted  with  such  surveyor's  writing  by  inspecting  ancient  sur- 
veys avowedly  made  by  him.  Jackson  v.  J\turray,  ibid.  77. 

After  the  hand  writing  of  a  party  is  in  evidence,  his  hand  writing  to  any  ether  in- 
strument may  be  proved  by  calling  a  witness  to  compare  it  with  that  to  be  proved, 
and  state  his  inference  to  the  jury.  Ruger''s  adms.  v.  Slialer,  ibid.  79.  Et  vide  Ho- 
rner V.  Wullis,  II  Mass.  Rep  309.  Hall  et  al.  v.  Huse,  10  Do.  39. 

On  an  indictment  for  alteriiig  a  forged  bank  note,  it  is  not  necessary  to  prove  th'; 
forgery  by  the  president  and  cashier,  whose  names  are  on  the  note  ;  a  witness  whc 
has  become  acquainted  with  tlieir  hand  writing  in  the  course  of  an  official  correspon- 
dence, is  sufficient.   Commonwealth  v.  Smith,  6  Serff.  &  Ji.  Rep.  568. 

The  hand  writing  of  a  party  to  a  receipt,  may  be  proved  by  a  witness  who  has 
never  seen  him  write,  but  who  in  tlie  course  of  his  dealings  with  him  has  received 
his  promissory  notes,  which  the  party  has  paid,  if  the  witness  swears  from  the  know- 
ledge derived  from  these  facts,  that  he  believed  the  signature  to  the  paptr  produced, 
to  be  the  proper  hand  writing  of  the  party.  Johnson  v,  Daverne,  19  Johns.  Rep. 
134. 

Where  a  witness  called  to  prove  the  hand  writing  of  a  subscribing  witness  to  a 
codicil,  could  not  undertake  to  say,  that  he  had  ever  seen  the  subscribing  witness 
write,  but  that  from  his  having  been  a  notary  p%iblic,\\e  had  seen  much  of  his  ac- 
knowledged writing,  it  was  held  sufficient.  Durican  v.  Beard,  2  j\'ott  &  J\l'  Cordis 
Rep.  400. 

It  is  sufficient  proof  of  defendant's  signature,  if  a  witness  swear  that  he  has  seen 
him  write,  and  that  he  believes  it  to  be  his  hand  writing.  Commissioners  of  Poor  v. 
Haidon,  1  jXott  &  M'  Cord's  Rep.  554. 

The  comparison  of  hands  will  not  be  admitted  where  the  subscribing  witness  can 
be  obtained.  Pearly.  Mien,  1  Tyl.  Rep.  4, 

Upon  an  indictment  for  stealing  a  bank  note,  bill,  &c.  parol  evidence  may  be 
given  of  the  contents  of  the  instrument,  without  a  previous  notice  to  the  defendant 
to  produce  it.   Common-wealth  v.  Messinger  et  al.  1  Binn.  Rep.  273. 

But  in  cases  of  forgery  and  passing  counterfeit  notes,  the  law  seems  otherwise. 
State  v.  Osbourn,  1  Root's  Rep.  152.   State  v.  Blodget,ibid.  534. 

Where  the  question  was,  whether  the  alteration  in  a  will  were  made  by  the  ori- 
ginal draftsman,  or  by  a  stranger,  evidence  of  other  writings  proved  by  witnesses, 
and  also  of  witnesses,  is  admissible  to  shew  that  the  peculiarities  of  the  alteration 
are  such,  as  the  party  frequently  usied  in  his  ordinary  and  genuine  handwriting. 
Smith  V.  Fenner,  I  Gallis.  Rep.  170. 

Hand  writing  cannot  be  proved  by  comparison  of  hands.  JMariin  v.  Taylor,  C. 
C.  Jpril,  1803,  Jl.  S.  Rep.   United  States  v.  Johns,  ibid,  .^pnl,  1806. 

But  after  evidence  has  been  given  in  support  of  a  writing,  it  may  be  corroborated 
by  comparing  the  writing  in  question  with  other  writing,  concerning  which  there  is 
no  doubt.  Jil'Corkley.  Binns,  5  Binn.  Rep.  349. 

Comparison  of  hands,  or  proof  by  witnesses  acquainted  with  the  hand  writing, 
may  be  left  to  the  jury,  on  an  indictment  for  forgery,  especially  where  the  writing 
is  found  ill  the  possession  of  the  prisoner.  Pennsylvania  v.  J\I'Kee,  Addis.  Rep.  33. 
Et  vide  State  v.  Bmnson,  I  Root's  Rep.  307. 

An  ancient  deed  which  had  not  accompanied  possession,  was  allowed  on  the  evi- 
dence of  a  person  who  swore  that  he  had  well  known  one  of  the  witnesses  to  it 


PRIVATE  WRITINGS. 


159 


dence,  no  evidence  whatever  of  its  contents  could  be  received.  fji,an.  n.  s.i 
until  notice  had  been  given  to  produce  it.(or)     This  notice  may  ^^' "ot'<>«  to 

,.,  ,  ,.  .  .  produce 

be  delivered  either  to  the  party  or  his  attorney,  even  in  an  m-    wiiungs. 

formation  or  penal  action. (1)  (r)     And  if  a  lessee  give  a  formal 

notice  to  his  lessor  of  his  intention  to  do  any  act  according  to  H )  Attorney 
the  terms  of  the  lease,  and  the  lessor  afterwards  assign  tlie  re-j^e  Merchant 
version,  it  is  silifficient,  when  a  dispute  arises  between  the  lessor'-^  i.Rei).2oj, 
and  the  assignee  of  the  reversion,  to  give  notice  to  the  latter  tov.  Wmttr,  3 
produce  such  formal  notice,  without  applying  to   the  original^*  ^^'^'P- ^^^- 
lessor,  for  it  will  be  presumed  that  he  delivered  it  to  his  as- 
signee as  a  document  relating  to  the  estate.(2)  C^)  Goodtitk 
A  letter  informing  a  man  of  the  dishonour  of  a  bill,  or  the*,fo"g^"g3_ 
like,  cannot  be  proved  until  a  similar  notice  has  been  given,(3)  (s)viiie,  16  East, 
This  rule  is  founded  on  the  wisest  principles  of  justice,  for  the 
party  in  whose  hands  the  papers  were,  not  deeming  them  ne-  (^)  ^'j"^"  ""■ 
cessary  for  his  own   case,  might  not  otherwise  bring  them  with  Peake'sN.  P. 
him;  but  the  rule  being  adopted  for  the  purpose  of  preventing  J "^^-^ 
a  misrepresentation  of  any  of  the  facts  which   form  the  founda  Huif,  5  Esp, 
tion  of  the  action,  it  follows  that  any  written  paper  delivered  to  p^^^  .^^j*^' 
a  party  after  it  is  commenced,  or  for  the  mere  purpose  of  a  for- 

and  had  seen  many  deeds  and  papers  signed  by  him,  and  believed  it  to  be  his  hanil 
writing,  though  he  never  liad  seen  him  write.  Thomas's  les.  v.  Uorlocker,  1  DaE. 
Rep.  14. 

On  the  same  principle,  that  comparison  of  hands  is  sometimes  admitted,  the  jury 
may  be  permitted  to  compare  the  types,  devises,  Sec.  of  newspapers,  a  foundation 
being  first  laid.  JM'Corklev.  Bimis,  5  Bimi.  Rep.  340. — Am.  Ed, 

{q)  Ante,  p.  140. — Am.  Ed. 

(r)  The  delivery  of  an  original  at  a  house  where  the  defendant  was  said,  in  the 
directory  of  tlie  current  year,  to  reside,  is  sufficient  to  authorise  the  n  ading  of  a. 
copy  of  a  letter  to  a  jury,  notice  having  been  given  to  produce  the  original.  Hazard 
V.  Van  Ami-inge,  4  Binn.  Rep.  295.  n. — Am.  Ed. 

LETTERS,  &c. 

(s)  Letters  written  by  a  party,  are  not  admissible  in  evidence  in  his  favour,  though 
they  are  against  him.  7'o-u'le  et  al.  v.  Stevenson,  1  Johns.  Cas.  1 10. 

Cotempormieoiis  correspondence  of  a  public  agent  abroad  with  his  government, 
is  evidence  for  him  in  an  action  brought  on  account  of  the  subject  stated  in  it.  Binq- 
ham  V.  Cabbot,  3  Dull.  Rep.  319.  Vide  Smith  v.  Carririgton,  4  Cranch's  Rep.  6'2. 

The  certificate  of  the  Governor  of  a  foreign  island,  registered  in  the  Admiralty 
<X  Martinique ,  relative  to  an  order  issued  by  him,  is  evidence  for  the  jury.  Bing- 
ham v.  Cabbot,  3  Dull.  Rep.  319. 

In  mercantile  transactions,  the  plaintiffs'  instructions  to  their  captain,  may  be 
given  in  evidence.  M'Clenachaii  v.  M'Carty,  2  Dall.  Rep.  51. 

A  bill  of  lading  nf)t  signed,  but  kejit  by  the  captain  for  his  own  use,  is  no  evidence 
to  shew  that  goods  were  shipped,  and  a  bill  of  lading  signed.  Wood  v.  Roach  et  ai. 
1  Yeates''Rep.  177.  S.  C.  2  Dall.  Rep.  ISO.—Am.'Ed, 


160  PRIVATE  WRITINGS. 

Chap.  II.  s.  4.mal  notice  previous  to  its  commencement,  and  of  which  a  copy 

produce*'    is  kept  is  not  within  it;  it  being  a  general  rule  that   no  notice 

writings,     is  necessary  to  produce   another  notice,  otherwise  it  might  be 

extended    ad  infinitwn ;  and,  indeed,  in  the  cases  of  notices 

Jotyw  Or-    given  to  a  tenant   to  quit,  to  a  magistrate,  previous  to  the  cora- 

ch.iiil,2  Bos.  '^  .  .  .  P  ' 

&  Pull.  39.     mencement  of  an  action  against  him,  a  demand  in  writing  of  a 

warrant,    made  previous    to    the    commencement  of  an  action 
against  an  officer,  or  the  like,  where  a  copy  signed  by  the  same 
person  who  signed  that  delivered  to  the  party  is  kept  by  a  wit- 
Anderson  v.  ness,  each  copy  is  considered  as  a  duplicate  original. (/)     The 
237^'    "■     case  of  an  attorney's  bill,  delivered  under  the  Statute,  is  similar 
in  principle,  and  may,  where  a  duplicate  has  been  kept,  be  proved 
in  like  manner  without   notice  to   produce  that   delivered.     In 
Cowen  V.       gpe  case  indeed,  where  trover  was  brought  for  a  bill  of  exchange* 

Abnthams,       .  i     i  i    i       t        i     ir  i  •  i  i  • 

1  Ksj>.  N.  P.  it  was  held   by  Lord    Kenyon',  that  notice  to  produce   the  on- 

Cas.  50.         ginal,  before  evidence  of  its  contents  was  admissible  ;  but  this 

has  since  been  properly  overruled,  as  the  form  of  the  action  itself 

gives  the  defendant  sufficient  notice  to  be  prepared  to  produce 

(1)  Buchcr  V.  ^e  instrument.(l)  (u) 

Jarnt,3  B')s.  \    j  \    J 

&  Pull.  U3. 

How  T)   Hall, " ~ 

14-  East,  274.       ,,..  ,  .,  ,,  ,  .l-^- 

[t)  A  notice  may  be  prnved  by  parol,  or  by  producing  a  copy  made  at  the  time  of 

naking  the  original,  and  it  is  not   necessary  that  notice  to  produce  the  original 

slionid  be  given.  Johnson  v.  Haight  et  al.  13  Johns.  Rep.  470. 

If  the  party  has  not  preserved  a  copy  of  a  notice  left  with  the  opposite  party,  its 
contents  may  be  proved  by  parol  evidence.  Tower  v.  Wilson,  3  Cuines'  Hep.  174. 
Col.  y  Caines''  Cas.  434. 

That  a  deposition  was  taken  according  to  notice,  may  be  shewn  by  parol  testi- 
mony.   Waters  v.  Br(m>n,  3  JMarsh.  Rep.  558. — Am.  Ed, 

hi)  Where  the  paper  on  which  the  action  is  founded,  is  in  the  possession  of  the 
opposite  party,  and  he  has  givf-n  no  notice  to  produce  it,  the  contents  cannot  he 
given  in  evidence.  Dobbin  v.  Watkins,  Coleman''s  Cas.  39.  Waring  v.  Warren, 
1  Johns  Hep  340.  lingers  etal.  v.  Va7i  Hoesen  et  al.  12  Johns.  Rep.  221.  Kimble 
,v.  JosUn,  Overtori's  Rep.  380.  Rose  v.  Bruce,  1  D"y''s  Rep.  103. 
I  W'here  notice  has  been  given  to  produce  a  deed  which  there  was  strong  presump- 
tion had  either  been  (l<  stroyed  or  in  the  possession  of  the  opposite  party,  he  was 
kllowcd  to  give  parol  evidence  of  it.  Jackson  ex.  d.  Gillespey  et  al.  v.  Woohey,  11 
Johns.  Rep.  446. 

inSmalkvoodv.JMitchell,2Hawy.  Rep.  145,  it  was  held,  that  the  necessity  of 
proving  notice  was  not  dispensed  with,  by  shewing  that  the  deed  had  been  lost 
■while  in  the  hands  of  a  person  who  had  possession  of  it;  for  the  opposite  party. 

In  an  aciion  of  trespass  for  pntering  the  plnintifF's  office,  and  carrying  away  a  bill 
of  lading,  &c.  evidence  may  be  given  of  the  contents  of  such  bill,  without  notice  to 
produce  it.   Gilinore  v.  JVale,  1  .Inlli.  .V.  P.  Cas.  41. 

In  Wood  V.  Strickland,  2  JMenvale's  Refi.  4fi4,  it  was  held,  that  when  from  the 
nature  of  the  proceedings,  the  party  must  know  that  the  contents  of  a  written  in- 
strument in  his  possession,  will  come  in  question,  it  is  not  necessary  to  give  any 
notice  for  its  production . 

In  trover  for  promissory  notes,  the  plaintiff  may  give  parol  evidence  of  their 


PRIVATE  WRITINGS.  ^Qj^ 

It  has  been  held  in  several  cases,(l)  that  if  the  party  to  whomchap.  n.  s.  4. 
notice  has  been  given  to  produce  an  instrument,  produce  it  ac-  Presumption 
cordingly,  the  other  party  is  entitled  to  read  it,  without  further  pi-oiiuced  ui\- 
evidence  of  its  execution.     As  against  the  party  to  it,  there  ^^'  ""'"=*'■ 
seems  to  be  no  great  objection  to  this  rule;  for  he  must  know .  ,  „ 
whether  he  ever  executed  such  an  instrument  or  not,  and  the  son  v.  Jones, 
plaintiff  not  knowing  who  were  the  subscribing  witnesses,  cannot  S^^'^''  ?'^* 
come  prepared  to  prove  the  execution.     In  one  case,(2)this  rule  p.ssei v. God- 
was  extended  to  third  persons,  into  whose  hands  a  deed  had  ylj'e^^  r  ^^' 
been  delivered  :  and  it  was  held,  that  an  indenture  of  appren-  Rep.  43. 
ticeship  having  come  into  the  hands  of  the  officers  of  a  parish  ,^.  j^^,^  ^  j^^^. 
who  were  no  parties  to  it,  and  they  producing  it  under  a  notice^habitamsof 
that  no  evidence  was  necessary  to  prove  the  execution  ;  but  the2T.Rep!^4i. 
propriety  of  this  decision  has  been  doubted  by  very  high  autho- 
rity.    For  in  a  subsequent  case,  where  a  similar  point  came  be-l^'*'^-  ^-  In- 
fore  the  Court,  Lord  Kenyon  said  it  was  too  important  a  ques-Doito", Mich. 
tion  to  be  discussed  in  a  session's  case,  where  the  opinion  of  a"^'  ^^°-  3- 
Court  of  error  could  not  be  taken,  and  that  nothing  but  a  solemn 
judgment  of  the  House  of  Lords  should  ever  persuade  him  that 
this  decision  was  right. 

Another^'case  afterwards  occurred,  in  which  the  rule  was  de- C°*''l°"*- "de- 
nied altogether  ;  and  the  plaintiff  having,  in  consequence  of  no- 543.  '  ' 
tice  from  the  defendant,  produced  a  deed  to  which  he  was  him- 
self a  party,  whereby  it  would  iiave  appeared  he  had  no  interest 
in  the  insurance  which  formed  the  subject  of  that  cause  ;  and  it 
appearing,  on  inspection  of  the  deed,  that  there  were  subscribing 
witnesses  to  it,  the  defendant  was  not  permitted  to  read  it,  though 
he  had  no  previous  knowledge  who  the  subscribing  witnesses 
were;  but  in  a  still  later  case  the  general  doctrine  laid  down  inPearcet;. 

°  Hooper,  S 
Taunt.  62. 

amount,  without  giving  dei'endant  notice  to  produce  them.  J\r  Clean  y.  He)'tzog, 
aSerg.  &  R.Rep.  154. 

Where  the  form  ot  action  or  pleadings  gives  the  party  notice  to  be  prepared  to 
produce  a  writing,  if  necessary,  no  other  notice  is  requisite.  Hardin  v.  Kretdnger, 
17  Johris.  Rep.  293. 

Where  a  person  had  given  a  note,  against  wliich  the  Statute  of  Limitations  had 
run,  and  upon  its  being  presented  for  payment,  seized  it,  saying,  "  I  am  glad  I  have 
qot  it  in  my  hands,"  in  an  action  on  this  note,5the  plaintiff  may  give  evidence  of  its 
contents,  without  notice  to  the  defendant  to  produce  it.  Graij's  exrs.  v.  Kernahan, 
2  Rep.  Const.  Court,  S.  Car.  65. 

Parol  testimony  of  a  deed  or  will  in  the  possession  of  the  plaintiff,  and  disclosed  in 
the  cross  examination  of  his  witness,  cannot  be  received  without  notice  to  produce 
it.  Jackson  ex.  d.  Van  Sltjch  v.  Son,  2  Caines''  Rep.  178. 

Where  shipping  articles  are  in  the  Court  of  Admiralty,  on  account  of  the  ship's 
capture,  after  notice  to  defendant  to  produce  them  by  plaintiff,  he  may  give  parol 
evidence  of  their  contents.  PaUon's  adms.  v.  Park,  Jnth.  JV.  P.  Cas.  18.— Aar. 
Ei). 

Y 


^62  PRIVATE  WRITINGS. 

CiiHp.  II.  s.  4.  this  case  was  in  some  measure  restrained,  and  the  plaintiff  having 
PresuinpUon  under  notice  from  the  defendant,  produced  the  conveyance  to 

ot  instruments  '  ,     i     i  i   •       j- 

from  length  ot  himself  of  the  estate  of  which  he  contended  the  land  in  dispute 
t'«ne.  ^^^g  ^  parcel,  and  to  which  deed  he  was  an  executing  party,  it 

'  was  held  that  it  was  not  necessary  for  the  defendant  to  call  the 

subscribing  witness.  In  cases  of  this  description,  a  Judge  would 
probably  make  an  order  an  the  inspection  of  the  deed,  to  give 
the  defendant  an  opportunity  of  informing  himself  whether  there 
were  subscribing  witnesses  or  not.(a?) 

There  are  some  instances  in  which  the  law  permits  instruments 
to  be  read  in  evidence  without  proof  of  the  execution.  In  most 
cases  it  would  be  absolutely  impossible,  after  a  great  length  of 
time,  to  prove  the  execution  of  a  deed, or  even  the  hand  writing  of 
the  parties.  It  is  necessary  that  a  period  of  limitation  should  be 
fixed,  otherwise  new  questions  would  daily  arise,  and  therefore 
Courts  of  Justice  have  laid  it  down  as  a  rule,  that  a  deed  of  above 
thirty  years  standing,  requires  no  further  proof  of  its  execution 
than  the  bare  production,  provided  the  possession  has  been  ac- 
cording to  the  provisions  of  the  deed,  and  there  is  no  apparent 
erasure,  or  alteration  on  the  face  of  it ;  and  livery  of  seisin, 
though  not  endorsed  on  a  feoffment,  will,  after  such  a  lapse  of 
(1)  Bui.N.  r.  time,  be  also  presumed.(lX2/)     In  like  manner,  if  a  bond  of  that 

Ibid.  256.  — — — 

Abr^Fv'cI  ni  (""^^  '"  ^"''*  upon  policies  of  insurance,  the  Court  will  order  the  assured,  upon 
11  where  affidavit  made,  to  produce  all  letters,  &c.  or  copies  relative  to  the  matters  in  issue, 
presumed  af-  Laivrence  y.  The  Ocean  Ins.  Co.  11  Johns.  Hep.  245.  And  on  their  production, 
ler  25  years,  the  insured  are  entitled  to  have  the  whole  read,  it  being  analogous  to  an  answer  in 
Chancery,  when  given  in  evidence  in  a  Court  of  Law.  I  Peters^  Rep.  22. 

If  deeds  are  on  record,  the  Federal  Court  will  not  grant  a  rule  on  the  party  ia 
whose  possession  tlie  originals  are,  to  produce  them,  unless  a  special  reason  be  as- 
signed.  Geiiger  les.  v.  Geyger,  C.  C.  2  Ball.  Hep.  332. 

No  notice  to  produce  deeds  is  necessary,  where  the  defendant  was  not  a  party  to 
the  deeds,  in  order  to  entitle  the  plaintiff  to  prove  their  contents.  Edgar's  les.  v.  Ro- 
bimon  et  al.  4  Ball.  Rep.  132.  But  in  Little  ei  al.  v.  Les.  ofBelancey,  5  Birtn.  Rep 
271.  273,  TiLGUMA>-  C.  J.  and  Yeates  J.  say,  that  there  must  have  been  some  pe- 
culiar circumstances  m  the  case  which  do  not  appear,  under  which  it  might  have 
been  proper  to  admit  parol  evidence. 

When  a  party  to  a  suit,  pursuant  to  a  notice  for  that  purpose,  produces  an  instru- 
ment to  which  he  is  a  party,  and  under  which  he  claims  a  beneficial  interest,  it  is 
not  necessary  for  the  other  party  to  prove  its  execution.  Jackson  ex.  d.  Stewart 
v.  Kingsley,  \7  Jolins.  Rep.  158.  Spencer  C.  .1.  said  it  was  immaterial  whether  the 
party  who  calls  for  the  deed  be  a  party  or  stranger  i.o\\..  Vide  Jietis  v.  Badger, 
12  Johns.  Rep.  223.— Am.  Ed. 

(y)  A  Sheriff's  deed,  which  has  never  been  acknowledged,  may  be  received  after 
a  great  lapse  of  time,  during  which  no  objection  was  made  by  the  debtor.  Les.  of 
Moorhead  v.  Pearce,  2  Yeates''  Rep.  456. 

In  an  ejectment,  a  Sheriff's  deed  which  did  not  recite  the  record,  was  allowed  in 
evidence,  twenty  years  possession  having  gone  with  it.  Brooke's  les.  v.  Ryan,  I 
Ball.  Rep.  94. 


PRIVATE  WRITINGS. 


163 


date  be  found  amongst  the  papers  of  an  intostate,(l)  or  public  Chap.  ii.  s.  4. 
company,(2)  the  same  presumption  arises  in  its  favour  from  the^j.'>'^""'P''°" 

, ; from  lengtU 

of  time. 
Proof  of  a  deed  by  a  surviving  grantor  in  1750,  wlio  swore  that  the  other  grantors  

were  dead,  and  had  executed  the  deed,  was  held  siifRcieiit,  it  being  an  ancient  deed, 

and  prior  to  the  Act  of  1771.    Jackson  ex.  d.  Uardenberg  et  al.  v.  Schoonmaker ,  \  I    ,°'-«vl.'i  , 

iiJo/ms.Iiep.iSO.  GuiMhall.'"' 

A  will  executed  in  1723,  and  proved  in  1733  and  1744,  and  recorded,  but  notaccord-  Silt,  after 
ing  to  law,  was  allowed  in  evidence  in  an  ejectment  in  1801  ^  though  actual   posses  Mich.  T. 
sion  did  not  folhiw  it,  that  being  explained  by  the  peculiar  siluntion  of  the  property  »' O'^- 
and  Other  circumstances.  Jacksonex  d.  Le^is  et  ul.  v.  iMroway,  3  Jo/ma.  Can.  283-  .^n  p  y_,, .. 

A  will  thirty  years  old  from  the  death  of  the  testator,  may  be  read  in  evidence,  j^  Qq_  of 
Jackson  ex.  d.  Bjirsham  v.  Blansham,  3  Johns.  Rep.  289.  Ch-lseM  \Va- 

Where  the  witnesses  to  a  will  are  all  dead,  and  one  of  them  had  signed  the  initials  'er  Woiksxi. 

of  his  name,  as  his  mark,  and   the  testator  bad  also  siy-iicd   his  mark,  anil  the  hand  „°"JP^''' ^' 

o   Siit^  alter 
■writing  of  two  of  the  witnesses  was  proved,  and  a  witness  at  the  trial  in  18U7,  swore  i  j-i    -t.^ 

that  he  had  seen  the  other  witness  make  his  mark  in  17C0,  to  a  paper  then  in  his  I7y5.  |  Esp. 

possession,  and  that  from  the  comparison  of  the  two  marks,  and  from  tht-  peculiar  275,  S.  C. 

manner  in   which   one   of  the    initial   letters  was  made,    he    believed  the    mark 

affixed  to  the  will  was  made  by  tht  witness  to  it ;  this  was  h'ld  sufficient  to  permit 

the  will  to  be  read  to  the  jury,  7ohen  accompanied  with  evidence  of  possession  by  the 

devisees  under  the  will,  and  of  the  declarations  of  one  of  the  other  witnesses,  in  his 

life  time  us  to  the  due  attestation  by  all  the  witnesses.    Jackson  ex.  d.  Van  Duseii 

et  al.  V.  Van  Dusen,  5  Johns-  Rep.  144. 

An  ancient  will  of  land,  which  has  accompanied  the  possession  for  thirty  years, 
may  be  read  in  evidence,  without  proof  of  its  execution.  Shalier  et  al.  v.  Brand, 
6  Binn.  Rep.  435. 

A  grant  admitted  in  evidence  though  it  wanted  many  of  the  formal  parts  of  a  deed, 
having  been  accompanied  by  long  possession.    Xee  v.  Tapscott,  2  Wash.  Rep.  276. 

A  deed  of  above  thirty  years  standing,  requires  no  further  proof  of  its  execution 
than  the  bare  production,  where  tln'  possession  has  gone  with  it,  and  there  is  no 
erasures.  Roberts  et  al.  v.  StatUon,  2  JHunf  Rep.  129  Et  vide  Barr  v.  Gratz,  A 
Wheat.  Rep.  213.  Stockbridge  \ .  West  Stockbndge,  \iMass.  Rep.  257.  Thomp- 
>on  v.  Bullock,  1  jBa^'.v  Rep.  364. 

After  a  long  possession  in  severalty,  a  deed  of  partition  may  be  presumed.  Hep- 
bum  et  al.  V.  Auld,  5  Crunches  Rep.  262. 

So  a  sole  possession  under  claim  of  rightby  o'le  tenant  in  common  forforty-t  wo  years, 
is  sufficient  to  prove  an  ouster.    Vandyck  v.  J'an  Beuren  et  al.  1  Caines''  Rep.  83. 

Where  in  a  sale  under  a  power  contained  in  a  mortgage,  a  drain  of  ten  feet  \a, 
width  was  excepted,  after  a  lapse  of  sixteen  years  from  the  sale,  it  was  intended 
that  the  drain  had  antecedently  existed,  and  was  founded  in  usage,  or  was  an  excep- 
tion in  the  previous  deeds  of  the  land.   Bergeji  v.  Bennet,  I  Caines'  Cas.  in  Er.  1. 

The  mere  possession  by  the  heirs  of  a  mortgagee  of  an  ancient  deed  releasing 
the  equity  of  redemption,  is  sufficient  evidence  of  its  execution,  if  ih^  possession  has 
aiccompanied  it.  JMallory  et  al.  v.  Aspinioall  et  al.  2  Day''s  Rep.  280. 

A  r'--entry  may  be  presumed  after  a  lapse  of  time.  Jackson  ex.  d.  Smith  et  al.  v. 
Stewart,  6  .Johns.  Rep.  34.  After  a  possession  of  fourteen  years.  Jackson  ex.  d. 
fioose  et  al.  v.  Demurest,  2  Caines'  Rep.  382.  Vide  Jackson  ex  d.  Donally  et  al.  v. 
Walsh,  3  Johns.  Rep.  220. 

In  ejectment,  the  jury  having  found  twenty  years  possession  in  the  plaintiff,  al- 
though it  was  objected  to  one  of  the  title  deeds  that  it  was  not  indented,  and  express- 
ed no  consideration,  it  was  not  sufficient  to  prevent  a  judgment  ii\  liis  favour.  Kin- 
ney v.  Beverly,  2  Hen.  U  Munf.  Rep.  318. 

A  deed  bearing  date  sixty-three  years,  unaccompanied  by  possession,  was  ad- 
niilted  in  evidence  upon  proof  of  one  who  had  known  one  of  the  witnesses,  had  seen 


j^Q^  I'RIVATE  WKITIXGS. 

Chap.  II.  8.  4.  place  where  it  was  found.*  But  as  this  rule  is  founded  on  pre- 
PiysumptDn  guniption,  it  does  not  apply  to  cases  where  there  are  circum- 
flora  length  stances  to  raise  a  contrary  presumption,(l)  as  if  the  possession 
ot  titnf .  i^j^g  ^^^^  contrary  to  the  deed,  or  if  the  deed  appear  on  the  tace 

~~~~"~"^  of  it  to  be  razed  or  interlined,  or  a  man  convey  a  reversion,  first 
r.  Poimli,  to  one,  and  then  by  a  subsequent  deed  convey  it  to  another,  and 
1701,  Gilb.     xj^g  second  purchaser  prove  his  title  ;  in  all  these  cases  it  will 

Ijaw  Kv.  103.  . 

See  also  Dou  be  incumbent  on  the  party  to  give  the  ordinary  evidence  of  the 
dem  Howell  execution  of  his  deed,  for  the  presumption  from  the  antiquity  of 

■V.  Llovd,  Ap-    '  .  1  1  •  •  •       1 

pend. '  the  deed  is  destroyed  by  the  opposite  presumption ;  in  the  one 

case,  that  some  unfair  alteration  has  been  made  in  the  deed  ;  in 

the  other,  that  the  person  having  the  possession  had  also  a  legal 

right ;  for  the  law  will  not  raise  a  presumption  that  a  man  would 

be  guilty  of  so  manifest  a  fraud,  as  to  convey  the  same  estate  to 

two  different  people. 

presumption       Another  instance  in  which  a  deed  is,  according  to  some  cases, 

citedlnVthers  considered  as  proved  without  calling  witnesses,  is  where  one 

deed  recites  another  ;  in  this  case,  the  recital,  it  has  been  said, 

is  sufficient  evidence  of  the  recited  deed,  against  the  party  to 

^g'^'lj^'o^g^^ ' that  wherein  it  is   recited,  or  against  any  one  claiming  under 

Fitzgei  Hifi  y.  him  ;  but  a  stranger  to  it,  evidence  of  the  actual"  execution  of  the 

Law^Ev.  100.  fi^'^t  deed  must  be  given,  tor  the   admission  of  another  person 

cannot  affect  him,  and   if  such  evidence  were  to  be  admitted. 

Vide  Hardr.    deeds  might  easily  be  fabricated  by  false  recitals.fz)    But  though 

120.     Cragg 

V.  Norfolk,       — ■ 

See  also  Ford  '^''"y  tweeds  and  papers  signed  by  him,  and  from  them  he  believed  his  name  to  the 
V.  Grey,  6  deed  to  be  of  his  hand  writing,  though  he  never  had  seen  the  witness  write.  Tho- 
Mod.  45.  mas's  les.  v.  Horlocker,  1  Dall.  Rep.  14. 

Where  the  heirs  of  an  intestate  acquiesced  for  twenty  years  in  the  possession  by  a 
purchaser,  of  the  re.il  estate  of  their  ancestor,  under  a  sale  made  b)  the  administra- 
tor, it  was  presumed  that  he  took  the  oath  and  published  the  notifications  required 
by  law  previous  to  the  sale ;  evidence  being  given  of  the  order  authorising  him  to 
sell,  and  of  the  actual  sale.   Gray  v.  Gardner,  3  Jllass.  Hep.  399. 

So  where  the  question  was  on  the  validity  of  a  title  to  land,  derived  under  a  col- 
lectoi's  sale  of  more  than  thirty  years,  it  was  held,  that  the  jury  were  properly  in- 
structed  to  consider  everything  as  proved,  which  might  reasonably  and  fairly  be 
presumed  proved  from  the  circumstances,  as  to  the  regularity  of  the  tax  bills,  valu- 
ations, warriints,  &c.   Column  et  al.  v.  Anderson,  10  J\lass.  Rep.  105. — Am.  Ed. 

•  In  Rex  v.  Inkabiianis  of  Ryton,  5  T.  Rep.  259,  it  was  held,  that  the  produc- 
tion of  a  parish  certificate  thirty  years  old,  was  sufficient,  without  evidence  of  the 
place  where  it  came  from  ;  but  the  common  practice  is  for  the  attorney  to  be  called, 
to  say  that  he  had  it  from  the  title  deeds  of  his  client  or  elsewhere,  to  shew  that  it 
came  from  the  proper  depositary.  Vide  ante,  133.  156. 

(r)  If  an  ancient  deed,  which,  when  possession  corresponds,  proves  itself,  recite  a 
power  of  attorney  necessary  to  give  it  validity,  the  due  execution  of  it  will  be  pre- 
sumed. Doe  ex  d.  Clinton  et  al.  y.  Phdps,  0  -To his.  Rep.  1G9.  S.P.  ibid.  r. 
Campbell,  10  Johns.  Rep.  475 


PRIVATE  WRITINGS.  ^^^ 

in  the  above  cases,  it  is  laid  down  in  general  terms,  that  as  chap.  ii.  s.  4. 
against  tiie  party  to  the  reciting  deed,  such  deed  is  evidence  of  Pi-esumpdon 
that  recited  in  it,  yet  there  are  others  in  which  this  seems  to  cited  in  others 

have  been  considered  as  secondary  evidence,  and  admissible  only 

when  the  first  deed  was  shewn  to  be  lost,  or  some  other  reason 

given  for  not  producing  the  regular  and  best  evidence  of  it. 

Such  is  now  the  general  received  opinion  of  the  profession,  and 

we  find  by  a  case  which  I  have  had  occasion  to  cite  in  a  former  Ante,  145. 

page,  that  even  an  admission  of  a  deed  on  oath  will  not  prevent 

the  necessity  of  giving  regular  evidence  of  its  execution. 

Something  similar  to  the  case  of  a  recital  is  that  of  an  en- Proof  of  deeds 
rolled  deed  under  the  Stat.  Hen.  8.  It  has  been  supposed  by  '^  '^"'^^  '"*^"' 
some,  that  when  a  deed,  requiring  enrolment  by  that  Statute, 

So  where  the  execution  of  the  deed  reciting  the  power  of  attorney  is  proved.  I)a- 
Z'idson^a  les.  v.  Beatty,  3  Har.  &  Jll'Jfen.  Rep.  594. 

A  recitnl  in  a  will  of  a  conveyance,  is  evidence  of  it,  and  will  estop  the  heir  of  the 
testator.  Demi  ex  d.  Coldaiet  ul.v.  Cornell,  3  Johns.  Cos.  174, 

The  rule  of  law  is,  that  a  deed  containing  a  recital  of  another  deed,  is  evidence 
against  the  grantor,  and  all  persons  claiming  hy  title  from  him  subsequently.  Pen- 
rose v.  Griffith,  i  Binn.  Rep.  2Sl.  Gar-wood  et  aL  \.  Dennis,  ibid.  327.  Morris's 
les.  V.  Vanderen,  1  Dcdl.  Rep.  67.  Hite's  heirs  v.  Shrader,  3  Litlell's  Rep.  447.  ^ 

But  it  is  not  evidence  against  a  stranger,  nor  where  the  title  is  derived  from  tiie 
grantor  before  the  deed  containing  the  recital.  Pewvp  v.  Griffith,  4  Binn.  Rep.  231 . 

But  where  the  existence  and  loss  of  the  ancient  deed,  and  death  of  the  witnesses 
is  proved,  and  no  possession  against  the  deed,  and  the  recital  is  made  by  a  person 
likely  to  be  acquainted  wilh  the  facts,  it  is  evidence  of  the  lost  deed  against  strangers, 
Gai'Tvood  et  at.  v.  Dennis,  4  Binn.  Rep.  314. 

So  where  it  is  by  the  person  to  whom  the  lost  deed  is  alleged  toliave  been  made, 
who  had  been  in  possession  a  long  time,  and  originally  held  as  tenant  by  the  curtesy, 
may  be  admitted  to  shew  that  he  exercised  acts  of  ownership  of  a  public  nature  in- 
consistent with  the  curtesy  estate,  ibid. 

A  recital  by  two  trustees  that  a  third  had  refused  to  intermeddle  with  the  trust, 
is  not  evidence  ofllie  fact.  Jllibie  v.  Cmmmings,  4  Yeates'  Rep.  5T7. 

A  recital  that  certain  land  had  become  the  property  of  ^.  and  that  he  had  an  es- 
tate in  fee,  is  evidence  against  the  grantor,  but  he  may  shew  that  .^  had  but  an  estate 
for  life.  Stoever  v.  Les.  of  Whitman,  6  Binn.  Rep.  416.  But  that  tlie  grantor  had 
entered  upon  lands  conveyed  to  .-J.  for  breach  of  a  condition,  does  not  estop  a  parlv 
claiming  under  ^.  and  not  under  the  deed,  although  the  deed  is  given  in  evidence  to 
shew  a  conveyance  to  Jl.  ibid. 

Recitals  of  mesne  conveyances  in  a  patent  from  the  Commonwealth  to  .7.  are  not 
rvidence  against  B.  who  claims  under  a  warrant  prior  to  the  date  of  the  patent. 
Penrose  v.  Griffith,  4  Binn.  Rep.  231.  Bell  v.  Les.  of  fVetherill,  2  Serg.  ij  R 
Rep.  350.     Stewart  v.  Butler  et  al.  ibid.  382. 

Qitere,  AV'hether  after  long  possession  it  would  not  be.  Garwood  et  al.  v.  Denni's, 
i  Binn.  Rep.  SM. 

The  rule  that  the  recital  in  a  patent,  is  only  evidence  against  persons  claimin;:- 
under  the  Commonwealth  by  title  after  the  date  of  the  patent,  does  not  apply  where 
defendant  shews  7io  title.     Downing  v.  Gallagher  et  al.  2  Serg.  &  R.  Rep.  4i5. 

Facts  recited  in  a  private  Act  of  Assembly,  are  not  evidence  in  controversies  be- 
tween the  applicant  and  strangei^;  but  are  against  the  Commonwealth.  Elmondoff 
v.  Canmchacl,  3  LittcWs  Rep.  47^,     Aw.  F.n, 


IQQ  PRIVATE  WRITINGS. 

Chap.  II.  s. 4.  has  been  so  enrolled,  the  bare  proof  of  a  copy  from  the  enrol' 
Proofofdeeds  ^^  ^  would,  in  all  cases,  be  sufficient  evidence  of  its  contents; 

by  enrolment  '  _ 

and  the  case  of  Smartle  v.  Williams,[\)  warrants  that  supposi- 

(i)Saik.  280.  tion.     But  no  other  case  goes  to  that  extent,  and  the  subse- 
quent Statute(2)  does  not  appear  to  put  that  construction  on  the 
c.  18.     "°*^'  Statute  of  enrolments.     By  that  Statute,(3)  "  for  supplying  a 
failure  in  pleading  or  deriving  title  to  lands,  tenements,  or  here- 

(3)  Sect.  3.  '  1  .        1       1       r  1  ••  11-1  11 

ditaments,  conveyed  by  deeds  oi  bargain  and  sale  indented  and 
enrolled,  according  to  the  Stat.  Hen.  8,  where  the  original  inden- 
tures of  bargain  and  sale  to  be  shewed  forth  or  produced  are 
tvanting,  Avhich  (it  is  recited)  often  happens,  especially  where 
divers  lands,  &c.  are  comprised  in  the  same  indenture,  and 
afterwards  derived  to  different  persons,  it  is  enacted,  that 
where  in  any  declaration,  avowry,  bar,  replication,  or  other  plead- 
ing whatsoever,  any  such  indenture  of  bargain  und  sale  enrolled 
shall  be  pleaded  with  a  profert  in  curia,  or  offer  to  produce  the 
same,  the  person  or  persons  so  pleading  shall  and  may  produce 
and  shew  forth,  and  be  suffered  and  allowed  to  produce  and 
shew  forth,  by  the  authority  of  this  Act,  to  answer  such  profert, 
as  well  against  her  majesty,  her  heirs  and  successors,  as  against 
any  other  person  or  persons,  a  copy  of  the  enrolment  of  such 
bargain  and  sale;  and  such  copy  examined  with  the  enrol- 
ment, and  signed  by  the  proper  officer  having  the  custody  of 
such  enrolment,  and  proved  on  oath  to  be  a  true  copy  so  exa- 
mined and  signed,  shall  be  of  the  same  force  and  effect,  to  all 
intents  and  constructions  of  law,  as  the  said  indentures  of  bar- 
gain and  sale  were  and  should  be  of,  if  the  same  were  in  such 
case  produced  and  shewn  forth."*  I  think  it  is  plain,  from  the 
whole  of  this  Statute,  that  it  was  intended  to  let  in  secondary 
evidence  when  the  deed  was  in  fact  lost.  The  party  was  still 
compelled  to  make  his  profert,  for  the  present  practice  of  plead- 
ing a  lost  deed,  was  not  then  considered  as  admissible  ;  and  that 
he  might  not  be  fettered  by  the  form  of  his  pleading,  a  Statute 
was  made  to  render  the  secondary  evidence  sufficient.  It  should 
therefore  seem,  that  in  this,  as  in  all  other  cases,  some  evidence 
should  be  given  of  the  inability  to  bring  forward  the  best  evi- 
dence, before  that  which  is  secondary  is  admitted.(a)     Lord 

*  Pfdteeding  on  the  same  principle,  the  Stat.  8  Geo.  2,  c.  22,  providing  for  the 
registry  of  deeds  in  tlie  North  Hiding  o(  Yoi-ksldre,  makes  the  enrolment  evidence 
in  case  of  loss  by  fire,  &c. 

(fl)  The  copy  of  a  deed  enrolled  in  the  King's  Bench  in  England,  and  proved 
before  the  Lord  Mayor  of  London  to  be  a  true  one,  was  allowed  to  be  given  in  evi- 
«!ence  to  a  jury,  to  svipport  a  title  to  lands.  Les,  of  IJyamy.  Edwards,  \  DaU 
fief,.  1. 


PRIVATE  WRITINGS.  |gy 

Chief  Baron  Gilbert  certainly  did  consider  the  enrolment  to  be  chap.  ii.  s.  4. 
evidence,  without  any  qualification  ;(l)  but  this  was  so  ably  con-,^'"""'^"'''^^''* 

.        _  '  •'by  enrolment, 

troverted  by  Mr.  Justice  Buller;(2)  and  appeared  to  be  so  ge- 

nerally  understood  as  the  practice,  that  I  did  not  think  it  neces-  (i)Giib.Law 
sary,  in  any  former  edition,  to  do  more  than  to  notice  it  as  a  mode  J*^^-  *^* 
of  proof  when  the  deed  was  lost  ;(3)  but  Mr.  Phillips  having(4)(2)Ni3iPrms, 
considered  it  as  evidence  in  all  cases,  I  have  added  this  obser-  '^^^' 

Vation.  (3)  Vide  ante, 
^61. 

Where  an  aTcn/'t/ respecting  land  had  been  proved  and  recorded,  under  the  Act  v'^' 
of  1715,  it  was  ruled  that  as  an  award  was  not  a  paper  directed  by  the  Act  lo  be    "'"'■ 
recorded,  an  office  copy  was  not  evidence.    James  v.  Gordon,  C.  C,  Jan.  1806,  J[l'. 
S.  Rep.  Et  vide  Lee  v.  Tapscott,  2  Wash.  Rep.  280. 

A  copy  of  a  copy  of  a  policy  of  insurance,  proved  to  have  been  compared  witli 
the  register  kept  by  an  Insurance  Company, and  notice  given  to  produce  the  original, 
cannot  be  given  in  evidence.  The  registf;r  itself  ought  to  be  produced,  after  proving 
the  existence  of  the  original.  U.  States  v.  The  Paid  Shearman,  \  Peters''  Rep.  98. 
A  certified  extract  from  a  document  in  the  office  of  the  Surveyor  General,  is  not 
evidence,  not  being  a  copy.  Les.  of  Griffith  v.  Tunckliouser,  1  Peters''  Rep.  418, 

In  J\''eio  York,  by  Stat.  sess.  36.  c.  07, 1  R.  L.  370,  the  proving  and  recording  of 
deeds,  &c.  is  provided  for. 

A  party  affected  by  the  deed,  may  question  its  validity,  and  the  force  and  effect  of 
the  formal  proof.  Jackson  ex  d.  Hardenbxirg  et  al.  v.  Schoonmaker ,  4  Johns,  Rep, 
161. 

A  paper  purporting  to  be  the  record  of  a  deed,  not  duly  acknowledged,  is  a  nul- 
lity,  and  not  admissible  either  as  a  record  or  copy  of  a  deed.  Doe  v.  Roe,  1  Johns. 
Cas.  402. 

An  office  copy  of  a  deed  proved  prior  to  the  Act  of  1765,  by  one  subscribing  wit- 
ness, is  not  evidence,  although  the  deed  is  proved  by  one  witness,  and  a  schedule 
endorsed  on  the  deed  by  the  grantor,  and  referring  to  the  deed,  is  proved  by  ano- 
ther.  Vickery  v.  M'Kniffht  et  al.  4  Bhm.  Rep,  204. 

In  Virginia,  a  certified  office  copy  of  a  deed,  is  admissible  as  primary  evidence. 
Commonwealth  v.  Preston,  Gilmer's  Rep.  235. 

In  Pennsylvunia,  the  uniform  construction  of  the  8th  sect,  of  the  Act  of  1715, 
(1  Sm.  Laivs,  95,)  since  it  has  passed,  has  been,  that  it  relates  solely  to  mortgages , 
and  defeasible  lieeih,  in  the  nature  of  mortgages.  Burke  y.  Allen,  3  Feates''  Re/j, 
351.  Geiss  V,  Odenheimer,iDo.^Z~^. 

Under  the  Vet  of  1715,  deeds  might  be  recorded  in  anyone  of  the  counties  where 
part  of  the  land  lay,  and  the  exemplification  of  the  recording  officer  of  that  county 
was  good  as  to  the  lands  lying  out  of  that  county.  Les .  of  Delancey  \ .  J\fKean, 
C.  C.  Oct.  1806,  M.  S.  Rep. 

Such  appeal's  to  have  been  the  construction  under  the  Act  of  1775,  (1  Sm.  Laios, 
422,)  vide  Leaznrc  v.  Uillegas,  7  Serg.  &  R.  Rep.  313. 

A  deed  dated  prior  to  \.h^  Act  of  18th  March,  1775,  is  good,  without  being  re- 
corded.  Poieers  et  al.  v.  JVtFerran  et  al.  2  Serg.  &  R.  Rep.  44. 

The  registering  of  a  SlierifT's  deed  in  the  Prothonotary's  office,  is  a  sufficient  re- 
cording  within  the  Ai;t  of  1775.   Shridcr''s  les.  v.  JVargan,  1  TJidl.  Rip.  68. 

The  circumstance  of  title  deeds  remaining  in  the  hands  of  a  grantor,  does  not 
produce  the  same  effect  here  as  it  might  in  England,  where  they  have  no  general 
Statute  for  the  registry  of  deeds.   Wilt  v.  Franklin,  1  liinn.  Rep.  522. 

It  is  not  a  legal  objection  to  a  conveyance  of  land  in  Pennsylvania,  that  the  gran- 
tor was  out  of  possession.  Sloever  v.  Les.  of  Whitman,  6  Binn.  Rep.  416. 

A  deed  for  lands  tvhiU  unrecorded,  is  no  evidence  of  title,  e.tcept  against  the 
grantor  and  his  heirs.  French  v.  Gray,  2  Con,  Rep.  92. — Am:.  Eu. 


j[63  EXPLANATION  OF 

Chap.  n.  s. -i.     The  foregoing  observations  have  been  confined   to  the  cvi- 
^lldsMid      'lence  required  to  prove  the  existence  of  deeds  and  their  due 
against  whom  execution,  it  remains  to  add  a  few  observations  on  their  admissi- 
evi  ence.       \)[\[{y  [n  evidence  when  proved.     A  party  is  always  bound  bj 
~~~~^~"  his  own  deed  ;  and  where  a  person  is  clearly  entitled  to  an  es- 
tate, any  conveyance  or  charge  by  him  is  evidence  against  a 
stranger.     Bat  as  a  general  rule  it  may  be  taken,  that  when  the 
title  is  in  dispute,  one  party  cannot  merely,  by  becoming  a  party 
to  a  deed,  make  evidence  for  himself  or  his  descendants.     If, 
indeed,  a  third  person  were  to  take  a  lease,  and  have  posses- 
sion, and  pay  rent  under  it,  the  possession  and  payment  of  rent 
would  be  evidence  of  themselves  of  title  in  the  lessor ;  and  so 
(i)Ciarkson  fortified,  the  lease  would  be  a  strong  act  of  ownership  ;(1)  and 
hous«r?5'T.    where  a  number  of  counterparts  of  leases  have   been  found 
Rep.  412.       amongst  the  muniments  of  the  lessor,  of  so  very  remote  a  date 
as  to  preclude  all  evidence  of  actual  possession,  they  have  been 
received  as  evidence  of  his  right :  as  have  ancient  entries  on  the 
rolls  of  a  manor  of  licences,  by  the  Lord,  to  persons  to  fish 
within  certain  districts,  as  evidence  of  his  exclusive  right  of  fish- 
(2)  Rogers     ing  within  them.(2)     But  this  evidence,  though  admissible,  is  so 
rcVrop.'  309.^^^'^^  ^^  ^°  ^^  entitled  to  no  weight,  unless  acts  of  ownership 
are  proved  within  more  recent  times. 


SECTION  V. 


Of  Evidence  to  explain  written  Instruments. 

Chap.  II.  s.  5.     A  DEED,  or  Other  instrument,  being  produced  and  proved,  is 

I  conclusive  upon  the  rights  of  the  parties,  and  no  parol  evidence 

can  be  received  to  contradict  it,  so  as  to  enlarge  or  narrow  its 

5  Co.  26,  a.    operation.fd)    Thus,  if  there  be  a  release  of  all  demands,  with- 

Paylerr.  ^  ^   ^ 

Homersham,    — — — — — 

R -t  h   'v    ^      (^)  "^^^  general  rule  is,  that  parol  evidence  is  admissible  to  eor/iZowi,  but  not  to 
Butcher  contradict,  alter,  add  to,  or  dimbmhSiViv\aen'm%WMTa&ni.    Les.  of  Thomson  etux. 

1  N.  Rep'.  113.  V.  White,  1  Ball.  Rep.  426.  O'Hara  v.  Hall,  4  Do.  340.  JWDermot  v.  U.  S.  Ins. 
Co.  3  Serg.  &  R.  Rep.  604.  JM'DoTvall  v.  Beckly,  2  Rep.  Const.  Ct.  S.  Car. 
265.  Jackson  ex.  d.  Van  Vetchenetal.  v.  Sill  et  al.  WJohns.  Rep  201.  Dun- 
hams. Baker,  2  Day's  Rep.  137.  Clark  v.  M'MUlan,  2  Car.  Law  Repos.  265. 
Pliilips  V.  Keener,  2  Overton's  Rep.  S'29.    Bond  \ .  Jackson,  \  Cooke's  Rep.  500. 

In  .Massachusetts,  it  cannot  be  received,  unless  it  contain  some  latent  ambiguity. 
Richards  v.  Killam,  10  Mass.  Rep.  239.  Paine  et  al.  v.  JWInlier,  I  Do.  69.  Re- 
•nere  T.  Leonard  et  aL  ibid.  91.  ^Levns  v.  Gray,  ibid.  297.     Tf'atson  et  al.  t.  Boyles- 


WRITTEN  INSTRUMENTS.  j[gg 

lit  any  recital  to  restrain  its  general  operation,  it  cannot  be  cUap.  ii.  s.  5. 

Contradiction 

^  ~        ■        of  Deed 

ion,  5  Do.  ill.     Storer  y.  Freeman,  6 />o.  435.     Barker  v.  Prentiss,  ibid.  4.30.  "°t   admitletl. 

JMvrray  v.  Hatch,  ibid.  477      Hunt  adm.  v.  Mums,  ibid.  519.     King  v.  King,  — — 

7  2>o.  496.  Hunt  adm.  y.  Adams,  ibid  518.  Mbee  y.  IVard,  S  Bo.  79.  El  vide 
in  Virginia,  Gateivood  v.  Burrtis,  3  CalVs  Rejj.  194.  Tabb  et  al.  v.  Archer  et  ul, 
SHen.  &  M.  Hep.  3^9. 

No  pHrol  evidence  is  admissible  to  shew  the  extent  or  legal  operation  of  a  wri- 
ting or  to  cdnl'ol  it.  Carter  v.  Bellamy.  Kirb  Rep.  291.  Nor  to  enlaige  or  vary 
a  written  conttaet.  Dunham  v.  Baker,  2  Day's  Rep  137.  Et  vid<i  .Stevens  et 
al.  V.  Cooper  et  al.  I  Johns.  Ch.  Rep.  ¥25  Barret  v.  Barret,  i  Eq.  Rep.  447. 
ML'  ConiiiWs  heirs  v.  Dunlap,  Hardin's  Rep.  41.  Query  v.  White,  1  Bibb's  Rep. 
271.     Lemastery.  Burkhart,^  Do.  28.     Garten  etux.v    Chandler,  ibid.  2i6. 

Sed  vide  contra  .Keating  v.  Price,  1  Johns.  Cos.  22.  Quere,  it  a  covenant  or  writ- 
ten lease.     Fleming  v.  Gilbert,  3  Johns.  Rep  520. 

But  it  ma)  where  a  declaration  is  made  before  a  deed  is  executed,  shewing  the 
design  xvith  -which  it  -was  done,  in  cases  ai  fraud  and  of  trusts,  though  no  trust  was 
declared  in  writing.  Les.  of  Thompson  et  ux.  v.  JVhite,  1  i>a//.  Jfe/(.  424.  Bots- 
ford  V.  J97«T,  2  Johns.  Ch.  Rep.  405. 

So  to  prove  a  resulting  trust.  Jacksm  ex  d.  Kane  et  al.  v.  Sternbergh,  1  Johns, 
Cat.  153.     /'oo?  e^  «/.  v.  Colvin  et  al.  3  Johns.  Rep.  216. 

Sed  vide  Gilpins  v.  Co7isequa,  1  Peter's  Rep.  84.  Et  vide  7?oss  v.  JVlf/aicZ/, 
1  W^'nsA.  fiep.  14.  Flemmingy.  milis,i  Call's  Rep.  13.  Beckioithv.  Butler etal. 
Wash.  Rep.  I'iA.  Contra,  Lloyd  etal.  &c.y.  Ingles'  exr.  1  Defsatis.  Eg.  Rep.  333. 

But  ill  cases  of  fraud,  vide  Filzputrick  et  al.  v.  Smith  adm.  1  Dessaus.  Eq.  Rep. 
340.  Coger's  exr.  v.  Jit' Gee,  2  5i66's  /?ep.  321.  So  of  trusts.  Gay  y.  Hunt,  1 
Murphey's  Rep.  141. 

But  not  that  receipts  given  by  heirs  to  administrators  was  intended  for  the  shares 
of  the  real  as  well  as  personal  estate,  ffarrisv.  Diiikins  etal.  4  Dessaus.  Eq.  Rep.  GO. 

In  many  cases,  it  has  been  received  to  exi)lain,  and  in  some  sort  toi<ary,  what 
appeared  on  the  face  of  the  writings.  JM'JMeen  v,  Owen,  1  Yeates'  Rep.  135. 
S.  C.  2  Dall.  Rep.  173.   Cole  v.  Wendel,  8  Johns.  Rep.  90. 

But  not  to  affect  the  rights  nf  thii-d  persons,  uniiilnrmed  of  the  facts,  and  who 
have  bona  fide,  and  for  a  valuable  consideration,  acquired  rights  under  it.  Heilner 
V.  Imbrie  etal.  6  Serg.  &  R.  Rep.  iOl. 

Nor  to  contradict  a  writing,     Uerdy.  Bissell,  1  Root's  Rep.  260. 

A  written  instrument  cannot  be  explained  by  parol  evidence,  unless  it  refers  to 
something  rfeAors,  of  so  ambiguous  a  nature,  as  to  require  explanation.  JU'Der- 
tnot  V.  U.  S.  Ins.  Co.  3  Serg  &  R.  Rep.  604. 

So  where  an  award  on  its  face  appears  final.  Barlow  y.  Todd,  3  Johns.  Rep.  363. 

It  may  of  a  variance  of  ihe  thing  sold  from  the  written  description.  Work  v. 
Grier,  Addis.  Rep.  372. 

But  not  to  shew  the  understanding  and  intention  of  the  parties  to  a  policy  of  insu- 
rance.   JVev)  York  Ins.  Co  v.  Thomas,  3  Johns.  Cas.  1. 

Whenever  the  question  arises  on  the  construction  of  words,  qua  words,  no  parol 
evidence  can  be  admitted,  ibid.  601.  Revere  v.  Leonard,  1  Jllass.  Rep.  91.  Hoto 
et  al.  y.  Bass, '2  Do.  380. 

But  it  is  admissible  when  it  is  necessary  to  know  what  cause  of  action  the  plaintiff 
prosecuted  before  arbitrators,  or  what  discount  was  brought  forwanl  by  d"fendant. 
Baxire  v.  Barry,  3  Serg.  z3  R.  Rep.  461.     Zeigler  v.  Zeigler,  2  Do.  286. 

Quere,  Whether  it  could  be  received  of  a  mistake  made  by  the  clerk  of  the 
peace  of  the  county  in  registering  the  name  of  a  negro  slave,  the  original  return  ot 
the  supposed  owner  being  missing.     Campbell  v.  Wallace,  3  Yeates'  Rep.  572. 

That  a  negro  named  Lucy,  was  the  person  intended  to  be  entered  in  the  registry 
as  Ruth,  was  rejected.    Lucy  v.  Pumfrey,  Addis,  Rep.  380, 

z 


lyO  EXPLANATION  OF 

Chap.  II.  s.  5.  shewn  by  parol  evidence  that  a  particular  sum  of  money  w&i: 
'^"or'ne'^d""  i"^^"'!^^  to  be  excepted  out  of  it;''  not,  if  it  is  so  restrained, 

not  admitted.  — — 


But  it  was  admitted  to  prove,  that  an  entry  of  a  negro,  purporting  to  have  been 
made  on  a  certain  day,  vas  not  made  until  a  later  day.  Giles  v.  Mceks,  Addis 
Rep.  384. 

So  on  a  written  -warranty,  that  a  negro  is  sound,  to  shew  that  at  the  time  of  sale, 
the  vendor  informed  the  vendee  of  the  defect.  Sctmyler  v.  Itiiss,  2  Caines^  Hep. 
201. 

But  it  is  inadmissible  to  sliew,  that  a  certain  part  of  land,  included  in  a  deed  by 
administiatoi.s,  was  fxceptfd  out  of  the  estali-  Ht  the  time  of  sale.  I^es  of  Snyder 
v.  Snyder,  6  Binn.  Rep.  483.  Jackson  ex.  d.  Russell  et  al.  v.  Croy,  V2  Johns.  Rep. 
427. 

Where  a  rfeer/ expressed  a  certain  number  of  acres,  which  were  paid  for,  evi- 
dence will  not  be  admitted  to  shew  a  mistake  in  the  quantity.  Howes  v.  Barker,  3 
Johns.  Rep.  498. 

But  where  an  advertisement  stated  that  a  farm  would  be  sold,  without  stating 
that  tht  whole  would  be  evidence  of  the  declarations  by  the  Sheriff,  at  the  time  of 
sale,  that  a  particular  part  would  not  be,  was  admitted.  Les.  of  Wright  v,  Deck- 
lyne,  1  Peter's  Rep.  199.     Vide  Dolun  v.  Brings,  4  Binn.  Rep.  496. 

If  land  is  described  by  references  to  matters  not  contained  in  the  deed,  and  which 
could  only  be  made  to  appear  by  parol  evidence,  the  jury  ought  to  decide,  what 
land  was  the  subject  of  the  contract.  Richardson  v.  Les.  of  Stewart,  2  Serg.  &  R. 
Rep.  84. 

Documents  certified  by  a  foreign  notary,  tending  to  prove  a  transfer  of  an  Ame- 
rican vessel  to  a  foreigner,  may  be  contradicted  by  parol  testimony.  JJ.  States  v. 
The  Jason,  1  Peter's  Rep.  430. 

•  AVhere  there  was  a  reference  of  all  matters  in  difference,  and  the  arbifators 
made  an  award  as  to  all  matters  which  the  parties  brought  before  them;  it  was  held, 
that  this  did  not  preclude  them  from  shewiug  that  there  were  other  matters  which 
had  not  been  disputed  before  the  aibitrators.  Ravee  v.  Farmer,  4  T.  Rep.  146.  But 
in  a  subsequent  case,  where  one  party  contended  that  he  was  entitled  to  a  deduction 
arising  out  of  ihe  very  transaction,  the  Court  ol  King's  Bench  held  he  could  not  claim 
it  afterwards,  though  he  did  not  submit  it  to  the  arbitrator  at  the  time  Smith  v. 
Johnson,  15  East,  213.  We  bad  before  occasion  to  notice  the  like  decision,  as  in 
Ravee  v.  Farmer,  in  the  case  of  a  judgment,  where  the  plaintiff  had  not  given  the 
whole  of  his  demand  in  evidence  before  the  jury.  Vide  ante,  68,  69.  Another  excep- 
tion to  this  rule  is  the  date  of  the  deed, -which  is  never  conclusive  as  to  the  time  of 
delirery,  from  which  alone  the  deed  takes  its  operation  ;  for  it  is  open  to  the  party 
in  all  cases. to  shew,  that  the  deed  was  executed  on  a  day  different  from  that  where" 
on  it  appears  to  bear  date.     Shep.  Touch.  72.    Hall  v.  Cazenove,  4  JEast,  477.-J- 

■}■  The  subscribing  witness  to  a  deed  attests  nothing  but  its  sealing  and  delivery  ; 
therefore  a  witness  to  it  may  be  called  to  prove  it  antedated.  Fox's  les.  v.  Palmer 
etal.^Dall.  Rep.  214. 

So  a  feme  covert  who  had  executed  a  deed  with  her  husband.  Jackson  ex  d. 
Gris-wold  et  al.  v.  Bard.  4  .Johns.  Rep.  230. 

The  date  of  a  deed  is  not  the  essence  of  it,  and  the  party  to  it  is  not  estopped  from 
saying  the  contrary  of  that  which  appears  on  his  own  deed.  Cutlar's  adms.  v.  CuU 
lar's  exrs.  2  Hayiv.  Rep  154. 

The  date  of  a  policy  of  insurance  may  be  inquired  into.  Earl  v.  Shaw,  1  Johiis. 
Cos.  313. 

A  mistake  in  the  date  of  a  deed  will  not  vitiate  its  effect.  Jackson  ex  d.  Harden- 
herg  et  al.  v.  Schoonmuker,  2  Johns.  Rep.  230. — Am.  Ed 


WRITTEN  INSTRUMENTS.  ^yj^ 

can  parol  evidence  be  received  to  give  it  a  larger  and  more  ex-chap.  ii.  s.  5. 
tensive  effect.     So  where  an  auctioneer  put  up  a  copyhold  es-  Contradiction 

not   admitted. 


In  an  action  on  a  bond  given  for  tl)e  purchase  of  land,  evidence  of  the  value  of  the 
property  sold,  was  ruled  to  be  inadmissible.     Lee  v.  JiidcUs,  1  Yeates^  Rep.  8. 

It  seems,  that  parol  evidence  is  admissible  of  what  passed  at  the  time  of  the  exe- 
cution of  deeds,  and  to  shew  fraud,  mistake,  or  trust,  or  matters  not  inconsistent 
.  with  the  deed,  but  not  to  prove  conversations  between  the  ()arties  the  day  before  the 
execution  of  a  deed,  in  order  to  vary  their  engagements.  Cozens  v.  Stevenson,  5 
Serg.  ^  R.  Rep.  A21. 

It  is  settled  law,  that  what  passed  at  or  before  the  execution  of  an  instrument,  is 
admitted  in  cases  of  fraud  and  plain  mistake,  in  drawing  the  writing.  Christ  v. 
Biffenbach  et  al.  1  Serg.  &  R.  Rep.  464. 

So  where  a  promise  by  one  party,  induced  the  other  to  execute  the  instrument. 
Campbell  V.  J\t  Clenachan,  B  Serg.  iJ  R.  Rep.  171.  Et  vide  Soriverbye  et  ux.  v. 
Arden  et  al.  1  Johns.  Ch.  Rep.2U).  Keisselbruch  v.  Li-Angston,  4  Do.  144.  White 
y.Eagan,  1  Bay's  Rep.  247.    Morris  v.  Morns,  2  Bibb's  Rep.  311. 

Parol  evidence  allowed  to  be  given  of  an  agreement,  that  the  grantor  should  de- 
fend all  suits,  upon  a  covenant  "to  make  good  the  land  against  all  persons  claim- 
ing."   Birchfield  adm.  v.  Castkman,  Addis.  Rep.  181. 

But  it  was  admitted  to  shew  from  what  passed  at  the  time  of  executing  articles  of 
agreement,  that  it  was  the  intention  of  A.  to  include  a  certain  manor  in  a  deed  of 
all  his  lands  in  Pennsylvania.  Hurst's  les,  v.  Kirkbride  et  al.  cited  1  Yeates'  Rep. 
139. 

Sed  vide  Field  et  al  v.  Biddle,  2  Dall.  Rep.  171.  1  Yeates'  Rep.  13'2.  Vide  what 
Yeates  J.  says,  3  Binn.  Rep.  314.  Les.  of  Church  v.  Church,  4  Bo.  280.  Hill  v. 
Ely,  5  Sei-g.  &  R.  Rep.  366. 

But  the  ground  on  which  the  evidence  was  received,  was  that  of  fraud.  Wallace 
V.  Baker,  1  Birin.  Rep.  610.  Et  vide  Les.  ofDinklew.  Marshall,  3  Binn.  Rep.  587. 

Parol  evidence  is  inadmissible  in  the  Circuit  Court  of  the  United  States,  to  shew 
tliat  at  the  time  of  executing  a  written  assignment  of  a  bond,  the  assignor  expressly 
guaranteed  the  payment  of  it.  O'Htra  v.  HalL  4  Dall.  Rep.  340.  Clarke  v. 
Russell,  3  Dall.  Rep.  415.   Ei  vide  Stubbs  v.  BuriueU,  2  Hen.  &  Miinf.  Rep.  536. 

It  is  inadmissible  to  prove  what  the  assignor  represented  due  on  the  bond.  Buck- 
ner  v.  Curry,  1  Bibb's  Rep.  477. 

But  it  is  admissible  to  shew  that  at  the  time  of  entering  into  articles  for  the  sale 
of  land,  it  was  agreed  by  the  parties  that  the  instalments  should  be  made  in  what- 
ever money  was  current,  at  the  time  they  fell  due,  the  articles  not  specifying  it. 
M'Meeji  v.  Oiven,  2  Dall.  Rep.  173.  S.  C.  1  Yeates'  Rep.  135, 

So,  if  made  at  the  time  of  executing  the  instrument,  in  the  absence  of  the  other 
party,  and  not  communicated  to  him.  Wallace  v.  Barker,  1  Binn.  Rep.  610. 
Wolfv.  Curothers,  3  Serg  &  R.  Rep.  240. 

Evidence  of  a  parol  declaration  of  Mr.  Penn,  respecting  a  sale  of  land,  was  re- 
jected.   Richardson's  les.  v.  Campbell,  I  Dall.  Rep  10. 

The  declarations  of  a  grantor,  alter  tlie  execution  of  a  deed,  which  was  expressed 
to  be  made  for  a  valuable  consideration,  th:it  he  had  paid  nothing  for  it,  is  inadmis- 
sible. Church  V.  Church,  4  Yeates'  Rep.  480.  Vide  Brashier  v.  Burton,  3  Bibb's 
Rep.  9. 

But  admissihie  to  prove  that  n  purchase  was  partly  for  the  use  of  another.  Gre~ 
ffory's  les.  v.  Setter,  1  Dall.  Rt-p.  193. 

So  that  a  nurigage  to  A.  was  intended  for  the  security  of  B.  Peterson  v.  Wil- 
ling et  al.  3  Dall  Rep.  506. 

So  that  a  deed  to  A.  was  in  trust  for  B.  Boydy.  M'LeaneC  ux.  1  Johns.  Cha, 
Hep.  582. 


^y^  EXPLANATION  OF 

Chap.  n.s.  s.tate  tor  sale  by  auction,  which  in  the  conditions  for  sale  was 

Contradiction      ____^ _____^___^_^_____- 

of  De.  (1  '  " 

not   admitted.      Likewise  that  a  note  signed  by  one  partner  was  given  on  behalf  of  the  firm.   Own- 

,  i7igs  V.  Trotter  eial.  I  Bibb's  Rep.  157 

Dechir;itior,s  of  the  grantor  to  tbe  grantee  after  the  execution  of  the  deed  of  trust, 
but  betbrt'  the  grantee  had  accepted  it,  are  evidence  to  explain  the  trust.  Drum 
V.  Les.  ofSimp.so7i,  6  £inn.  Rep.  478. 

Declaiations  nf  the  grantor  at  the  lime  of  the  execution  of  the  deed — that  he  did 
it  only  for  a  sliam,  so  that  the  people  could  not  come  at  his  land,  are  not  admissible 
if  made  in  the  ahsencf  of  the  grantee,  and  if  no  ground  is  laid,  tending  to  shew  fraud 
or  a  trust.  Reichart  v.  Castator  et  al.  5  Biuji.  Rep.  109.  Et  vide  Hatch  et  al. 
V.  Straight,  3  Con.  Rep.  31. 

Supposing  that  a  mistake  in  drawing  articles,  may  be  proved  by  parol,  yet  in  an 
action  on  them ,  the  plaintiff  cannot  pi-ove  by  parol  an  agreement,  different  from  that 
on  which  he  has  declared.  BarndoUitr  v.  Tate,  1  Serg.  &  R.  Rep.  160.  Contra,. 
Baird  et  al.  v.  Bhiigrove,  t  IVash.  Rep.  170. 

AVhere  the  parties  reiluced  their  agreement  to  writing:  in  a  bill  of  sale,  no  action 
will  lie  on  a  parol  viairanty  at  the  time  ot  sale.  Jtumford  et  al.  v.  M'Pherson  et  a!. 
1  Joh7is.  Rep.  413.    M'  Williams  v.  Willis,  1  Wash.  Rep   199. 

A  receipt  is  only  evidmce  of  a  payment  an<l  satisfaction,  and  may  be  explained 
by  parol  or  other  testimony.  Alaze  v.  Miller,  C.  C.  Jan.  1806,  M  S-  Rep.  En- 
sign V.  Webster  et  al.  1  Johns.  Cas  145.  M^Kinstry  v.  Pearsall,  3  Johns.  Rep.  316. 
Tobey  v.  Barber,  5  Do.  68.  Tucker  v.  MuxTvell,  11  Mass.  Rep.  143.  Johnson  v. 
Joh?ison,ibid  359.  Thompson  et  al.  v.  Fausset,  1  Peter's  Rep.  182.  House  v. 
Lo-v,  2  Johns.  Rep.  378. 

Parol  evid<^iici-  caiuiot  be  given  of  a  fact  in  relation  to  which  there  exists  a  con- 
tract  in  writirg.  M' Kinney  \ .  Les.  of  Leacock,\  Serg.  &  R.  Rep.  27.  Marshall  v. 
Sprott,  Addis.  Rep.  361.  But  it  was  .Khnitted,  where  tht-re  was  a  provision  for  com- 
pensation, on  a  contingency  relative  to  the  contract.     Work  v.  Grier.  ibid.  372, 

Although  written  articles  of  partnership  are  entered  into,  yet  parol  evidence  is 
admissible,  to  prove  the  existence  of  a  partnership.  Widdifeld  et  al.  v.  Widdifield . 
2  Binn   Rep.^AS. 

The  declarations  of  a  person  that  he  was  authorised  by  a  power  of  attorn^'  from 
the  plaintiff  to  sell  lands,  are  not  evid  nee,  it  ought  to  be  produced,  or  its  loss  prov- 
ed. Vanhorn  v.  Frick,  3  Serg.  &  R.  Rep.  278  The  Propiietors  of  Kennebeck 
Purchase  v    Call,  1  Mass.  Rep  483. 

Parol  evidence  may  be  givt-n  of  a  sale  of  lands,  under  an  order  of  the  Orphans' 
Court,  withoul  a  return  ma'lf  thereon.     Rham  v.  iVorth,  2  Yeates'  Rep.  117. 

Evidence  of  the  parol  rieclar  alions  of  a  granloi',  tending  toinvalidatc  his  own  deed, 
is  iriadmissible.  Clyde  \.  Clyde,  \  Yeates'' Rep.  92  Les.  of  Simon  \  Gibson  et  al. 
ibid.  2'il.  Les   of  Hiibley  et  al  \ .  Whiteet  al.  2  Do.  IS3    Barrett  etux.  v.  French, 

1  Con.  Rep.  354.    Et  vide  Phanix  v.  Deyet  al.  5  Johns.  Rep.  41'2.   Colbank's exrs . 
V.  Burt,  2  Hay^v  Rep.  330. 

Id  slander,  for  sa>  mg  "  the  Rev.  T.  S.  is  a  perjured  man,"  &cc  parol  evidence  is 
admissibh   to  prove  that  plaintiff  is  a  minister  of  the  gosp'-l.      Cummin  v.  Smith. 

2  Serg.  ^  R.  Rep.  440. 

%  Where  a  ilecrce  of  sale  of  a  foreign  tribunal  was  by  parol,  it  may  be  proved  by 

parol.     Wood  v.  Reamnts,  C  C.  April,  1813,  M.  S.  Rep. 

So  it  was  admissible  in  an  action  on  an  award  for  d  'mages  done  to  the  plaintiff's 
land,  where  defendant  gave  in  evidence  the  record  of  a  recovery  in  a  former  action, 
in  which  a  continuundo  was  laid,  including  the  time  in  dispute,  to  shew  that  on  the 
former  trial,  thi  plaintiff  waived  his  claim  to  damages  for  part  of  the  time  l:iid  in 
the  continuando,  and  that  the  jury  under  the  diriction  of  th.  Court,  did  noi  include 
that  period  of  time  in  estimating  their  damages.  Haak  \.  Breidetibach  exr  3  Serg. 
&  R.  Rep.  20i. 

In  covenant  on  a  special  warranty,  the  covenantee,  in  order  to  shew  that  he  has 


WRITTEN  INSTRUMENTS.  ,.  yo 

stated  to  be  free  from  incumbrances,  and  it  afterwards  turned  Chap.  ii.  s.  5. 

_^ .  Contradiction 

of  Deed 
been  evicted  in  an  '^jectment,  by  a  person  claiming  under  the  grantor,  may  shew,  by  "°t  admitted. 

parol  evidence,  what  was  the  testimony  given  on  the  trial  of  the  ejectment.  Leather  ,., 

V.  PouUeney,  4  Binn.  Hep.  '252. 

Where  defendant  gave  in  evidence  the  record  of  a  trial  and  judgment  between  the 
same  parlies  thirl) -six  years  back,  it  was  ruled  that  he  could  not  prove  by  parol, 
that  the  testimony  then  offered,  was  not  produced.  Leech  s.  Armitage,  '2  Dull. 
Hep.  125.  S.  C.  1  Yeates.  Rep.  104. 

Parol  evidence  of  a  trial  or  judgment  is  inadmissible  ;  but  payment  after  judg- 
ment may  be  proved  by  parol.     Vanhorn  v.  F'lck,  3  Scrg.  &  R.  Rep.  278. 

A  vendor  cannot,  by  subsequent  declarations,  invalidate  his  own  act,  but  evidence 
of  independent  facts,  or  of  his  or  the  vendee's  declarations  tending  to  shew  a  sup- 
pressio  veii  or  allegado  falri,  as  would  warrant  the  interposition  of  a  Court  of  Equi- 
ty, is  admissible.     Les.  of  Steward  \.  Richardson,  2  Yeates''  Rep.  89. 

Where  one  has  sold  land  to  different  persons,  his  declarations  before  the  second 
sale  are  evidence  apainst  the  second  vendee  ;  aliter  of  what  passed  between  him  and 
such  second  vendee,  ibid. 

In  an  action  by  a  purchaser  of  land  at  Sheriff's  sale,  under  a  judgment  against  A. 
evidence  of  parol  lieclarations  by  A.  that  he  had  sold  the  premises  to  another  pre- 
vious to  the  juilgment,  was  ruled  inadmissible.  Baker's  les.  v.  Miller  et  at.  1  Yeates'' 
Rep.  305. 

An  auditor  in  a  domestic  attachment,  who  has  executed  a  deeil  with  words  of  ge- 
neral implied  warranty,  is  not  admissible  to  invalidate  it ;  nor  to  prove  that  the  con- 
sideration had  not  been  paid,  if  he  signed  a  receipt  for  it.  Les.  ofErbs.  Underwood, 
3  Yeates'Rep.  \7<i. 

Parol  evidence  is  inadraissihie  to  shew  that  by  the  term  "  specie"  in  a  policy  of 
insurance,  certain  paper  bills  were  intendt-d  by  the  underwriters.  Benezet  v 
M'  Clenachan,  cited  2  Ball.  Rep.  173.  Vide  Alsop  v.  Goodwin,  1  Root''s  Rep  196. 

An  Act  of  Assembly  having  made  a  certain  ki.)d  of  money  a  les;«l  tender,  it  was 
ruled,  that  evidence  to  prove  the  meaning  of"  current  lawful  money,''  in  a  contract 
between  the  parties,  was  inadmissible.  Lee  v.  Biddis,  1  Dall.  Rep.  175.  Bond  v. 
Haas's  exrs.  2  Do.  133. 

Where  the  contract  mentioned  dollars,  it  was  admitted  to  shew  that  U.  States 
bank  bills  were  intended.  Morion  v.  Wells,  1  7^/.  Rep.  381.  Lazells.  Pinnick, 
et  al.  ibid.  247.  Booth  v.  Tonserj,  ibid.  407. 

Where  the  covenant  was  to  pay  \(X)Ql.  evidence  was  admitted  to  shew  that  hard 
money  was  intended.  Moore  v.  Moore's  exrs.  1  Coxe's  Rep.  363. 

So  where  the  note  was  for  a  sum  of  money  at  "factory  prices,"  parol  evidence 
Vas  admitted  to  shew  whether  the  words  had  acquired  any  technical  meaning. 
WMpple  V.  Levett,  2  Mason's  Rep.  89. 

On  a  motion  to  set  aside  an  execution  on  a  judgment,  entered  by  warrant  of  attor- 
ney,  on  the  ground  that  the  first  instalment  was  paid,  parol  evidence  of  an  agree- 
ment that  an  execution  might  issue  for  protesting  the  whole  sum  was  rejected. 
Plankinhorn  v.  Cave,  2  Yeates"  Rep.  370.  • 

In  an  action  for  the  malicious  abuse  of  legal  process,  the  plaintiff  may  give  evi- 
dence of  a  parol  agreement,  not  to  issue  execution  on  a  bond,  until  aftei-  notice. 
Sommer  v.  Will,  4  Serg.  &  R.  Rep.  19. 

The  only  legal  evidence  of  the  time  of  filing  a  narr.  affidavit  of  defence,  &c.  is  the 
endorsement  of  the  clerk,  and  parol  evidence  will  not  be  received.  Brmi  v.  David, 
1  Browne's  Rep.  323. 

Parol  evidence  was  admitted  of  the  payment  of  the  consideration  money,  in  an 
action  to  recover  damages,  for  the  breach  of  an  agreement  for  the  sale  of  lands, 
B:llv.  Andrews,  4  Dall.  Rep.  152. 

But  not  to  shew  that  the  sum  in  a  receipt  of  twenty-five  years  standing  was  con- 
tinental money,  Robert  et  al.v,  Garnie,  3  Cainea'  Rep.  14. 


^^4  EXPLANATION  OF 

Chap.  II.  s.  5.  out  that  there  was  a  charge  affecting  the  estate,  on  which  ac- 

Contradictioii 

of  Deed ' 

nut  admitted.       g^  ^^  ^^^^^  ^^^  consideration  money  not />af</.  Shephardv.  Little,  14  Johns.  Sep. 
^ 210. 

In  special  assumpsit  for  damages,  on  a  breach  of  promise  to  convey  the  privilege 
of  a  water  course,  parol  evidence  of  the  agreement  was  admitted.  Clyde  v.  Clyde ^ 
1  Yeates'  Rep.  1)2. 

Parol  evidence  of  a  person  having  a  freehold,  is  admissible,  to  shew  a  settlement 
gained  by  a  pauper.    Commomuealth  v.  Jennings,  1  Urown's  Rep.  197. 

The  real  time  of  the  delivery  of  a  deed  may  be  shewn  by  parol.  Geiss  et  ux.  v. 
Odenheimer,  -i-  Yeates'  Rep  278.  But  its  acknowledgment  cannot.  Pendleton  v. 
Button,  3  Con.  Rep.  406. 

Parol  evidence  is  inadmissible  to  shew  that  a  lease  executed  in  the  name  of,  and 
reserving  a  rent  to,  one  person,  was  intended  for  the  benefit  of  another.  Jackson 
V.  ex.  d.  Bonnel  et  al.  v. Foster,  12  Johns.  Rep.  488. 

Though  parlies  and  privies  are  estopped  from  contradicting  a  written  instrumeot 
by  parol  proof,  the  rule  does  not  apply  to  strangers.  Overseers  oj" Berlin  \.  Over' 
aeers  of  J\''orwich,  10  Johns.  Rep.  229. 

In  some  cases  parol  evidence  of  an  agreement,  posterior  to  a  written  contract, 
wouhl  be  admissible.  Barber  v.  Brace  etal.  3  Co7i.  Rep.  9.  Con\v2L,JMumfQrdet  al- 
V.  ^rPherson  et  al.  I  Joh7is.  Rep.  413. 

Parol  evidence  of  a  conviction  for  felony,  is  inadmissible,  though  the  record  was 
burnt,  there  being  a  transcript  in  the  Court  of  Exchequer.  Hilts  v.  Colvin,\^  Johns. 
Rep.  182. 

Qvere,  Can  parol  evidence  be  given  of  the  loss  and  contents  of  a  discharge  under 
the  insolvent  law.  Schenck  et  al.  v.  Woolsey,  3  Caines^  Rep.  100. 

Parol  t'vidi  nee  of  the  contents  of  a  paper  relating  to  facts  collateral  to  the  issue^ 
is  sufficient.  .Mumford  v.  Boiune,  Anth.  JY.  P.  40. 

Pari'l  evidence  is  inadmissible  to  prove  the  grounds  of  a  regular  judgment  of  a 
Court  of  competent  jurisdiction.  Legg  v.  JiCgg,  8  JYlass.  Rep.  99. 

On  a  bill  for  specific  execution  of  a  marriage  agreement,  p.irol  evidence  of  the  real 
intention  of  the  parties  admitted.  Flemings  v.  Willis,  2  Call's  Rep.  5. 

In  the  construction  of  contracts,  the  situation  of  the  parties,  the  subject  matter  of 
their  transactions,  and  the  language  of  their  instruments  are  to  be  taken  into  consi- 
deration. Sumner  adm.  y.  Williams  et  al.  8  Jltass.  Rep.  162.  Fovile\,  Bigeloio, 
IQ  Do.  379.  Lelaiidv.  Stone,  ibid.  459.  Hopkins  v.  Young, 11  Do.  302. 

A  promise  to  pay  the  debt  of  another,  must  be  entirely  in  writing,  and  cannot  be 
added  to,  or  varied,  nor  so  far  explained  by  parol  evidence,  as  to  affect  its  import. 
Clarke  v.  Russell,  3  Dall.  Rep.  424. 

A  bill  of  parcels  delivered  by  J.  stating  the  goods  as  bought  by  J9  6f  J",  is  not  con- 
clusive evidence  against  ./.  that  the  gooils  were  their  joint  property — but  the  real 
circumstances  may  be  explained  by  parol.   ffaj-risY.  Johnston,  3  Cranch's  Rep.  311. 

Parol  evidence  is  not  admissible  in  an  action  on  the  covena'it  of  seisin,  to  prove 
prior  claims  on  the  land.  Pollard  et  al.  v.  Dwigfit  et  al.  4  Crunch's  Rep.  421.  Nor 
to  alter  the  condition  of  aHiond.  Atkinson  v.  Scott's  exrs.  1  Bay's  Rep.  307,  But 
it  is  to  shew  that  an  absolute  bond  was  intended  as  a  counter  security.  Todd  et  ux, 
v.  Rivers's  exrs.  1  Dessaus.  ■£(].  Rep.  155. 

An  erasure  in  a  deed  in  pursuance  of  an  agreement,  v.'hether /)rjo)'  or  subsequent 
to  its  execution,  does  not  avoid  it,  and  such  consent  may  be  proved  by  parol.  Speake 
et  al.  V.  U.  States,  9  Craneh's  Rep.  28. 

Where  a  check  was  drawn  by  the  cashiT  of  an  incorporated  bank,  and  it  was 
doubtful  on  its  face,  whether  it  was  an  official  w  a  private  act,  parol  evidence  was 
admitted  to  shew  that  it  was  a  private  act.  Alechanicks  Bank  v.  Bank  of  Columbia, 
5  Wheat.  Rep.  326. 

Where  a  deed  mentions  the  course  and  distance  of  a  line,  without  any  other  de- 
srription,  parol  evidence  is  adraissibte  to  prove  that  marked  trees  uot  in  the  course 


WRITTEN  INSTRUMENTS.  ^yg 

count  the  purchaser  refused  to  complete  his  contract;  it  was ciiap. ii. s. 5. 

Contradiction 

of  Deed 
gr  termination  of  tliat  line  to  be  the  line  intended.     Baker  \.  Seekright,!  H.  SJ^^^  admitted. 

Munf.  Sep.  177.  Et  vide  Mithlleton  v.  Peri-i/,<2  Bay's  Hep.  539.  JViblick  v.  Haze ._ 

brig's  eurs.  1  Marsh.  liep.  96.  JMageehan  v.  Les.  of  Adams,  '2  Bhm.  Rep.  109. 

Qnere,  Wlielher  proof  of  confession  by  the  assignor  of  a  bond,  after  the  assign- 
rnent,  that  the  money  had  been  been  paid  to  him  before  theassi({niiient,  can  be  given 
in  evidence  against  tiie  assignee.  Lewis  v.  Long,  3  JMiinf.  liep.  130. 

A  parly  to  an  instrunn-nt  may  be  a  witness  to  facts,  subsequent  to  ihe  execution 
thereof,  which  tend  to  invalidate  it.    JVebb  v.  Danforth,  I  Day's  Rep.  301. 

Where  the  record  of  a  juilgment  is  ot  a  term  generally,  and  it  is  material  to  as- 
certain the  particular  day  on  which  it  was  rendered,  it  may  be  shewn  aliunde. 
Young  V.  Kenyan,  2  Day's  Rep.  252. 

So  upon  an  issue  under  the  late  bankrupt  law  of  the  U-  States,  the  specific  act  of 
bankruptcy,  and  the  day  on  which  it  was  committed,  may  be  proved  by  parol.  Bel- 
den  V.  Edwards,  ibid.  246. 

Where  the  grantor  described  the  premises  as  the  farm  on  which'  he  then  dwelt, 
the  ambiguity  was  held  a  latent  one,  which  might  be  explained  by  evidence  aliunde'. 
DooUttle  et  ux.  v.  Blakesley,  4  Day's  Rep.  265.  465. 

The  alteration  of  a  writ  of  attachment  may  be  proved  by  parol  evidence  in  a  suit 
between  other  parties,  to  shew  a  dissolution  of  the  lien  created  by  the  attachment. 
Peck  V.  Sill,  3  Con.  Rep.  157. 

In  an  action  for  fraud  in  the  sale  of  a  privilege  under  a  patent  right,  the  plaintifT 
proved  that  a  certain  patent  had  been  granted  previously  to  a  third  person,  and  then 
offered  parol  evidence  to  shew  that  defendant's  patent  was  the  same;  held  admissi- 
ble. Bidl  et  al.  V.  Pratt,  1  Con.  Rep.  34-2. 

Parol  evidence  admitted  to  shew  that  it  was  the  understanding  of  the  parties,  (hat 
the  demand  and  notice  required  by  law  to  charge  the  endorser  should  be  dispensed 
with ;  "  I  do  request  that  hereafter,  any  notes  that  raay  tall  due  in  the  f/.  States 
Bank,  in  which  I  am  or  may  be  endorser,  shall  not  be  protested,  as  1  will  consider 
myself  bound  in  the  same  manner  as  if  they  were  legally  protested."  The  Union 
Bank  v.  Hyde,  6  Wheat.  Rep.  572. 

Parol  evidence  of  the  contents  of  a  confession  made  by  a  defendant  on  a  criminal 
prosecution,  and  reduced  to  writing,  is  admissible  in  a  civil  action.  Rattonv.  Free- 
man et  al.  1  Coxe's  Rep.  113. 

Though  tbei-e  may  be  a  written  confession  of  the  accused,  taken  before  a  Judge, 
parol  testimony  of  confessions  on  other  occasions,  are  admissible  in  evidence.  The 
State  V.  Wills,  1  Coxe's  Rep.  424. 

A  i)arty  who  has  a  mutilated  paper,  shall  not  be  permitted  to  prove  the  nature 
and  contents  of  the  part  torn  off,  by  parol  testimony.  Administrator  of  Price  v.  Ad- 
ministrator of  Tallman,  1  Coxe's  Rep.  447. 

In  an  action  on  a  note,  wherein  the  defendant  promised  to  pay  the  plaintiff  twelve 
months  after  date  two  hundred  and  fifty  dollars  in  brown  cotton  shirting,  at  the  price 
of  thirty  cents  per  yard,  the  defendant,  after  a  default,  offered  evidence  to  shew, 
that  cloth  of  that  description,  at  the  time  the  note  became  payable,  was  of  less  value 
than  thirty  cents  per  yard  :  held  inadmissible.  Brooks  v.  Hubbard,  3  Con.  Rep.  58. 
Parol  evidence  of  a  person's  acting  as  constable,  admissible.     Stout  v.  Hopping, 
1  Uah.Rtp.  125. 
Soto  prove  a  defendant  a  Judge.     Gratz  v.  Wilson,  \  Hals   Rep.il9. 
Administrations  cannot  be  proved  by  parol.     Hay  v.  Bnu-re  et  al.  1  Hals.  Rep. 
212. 

Where  the  plaintiff  gave  to  the  deputy  Sheriff,  who  had  the  defendant  on  a  ca. 
sa.  a  writing  stating  that  he  wished  the  del' mlant  shewed  as  much  indulgence  as  he 
could,  wiih  safety  to  hims<  If,  and  without  hazarding  the  ih  bt  ;  held,  that  parol  evi- 
dence of  the  conversations  between  the  plamtiff  and  the  officer,  at  the  time,  and  of 
extraneous  circumstances,  to  ascertain  the  nature  of  the  indulgence  which  the  officer 


^yQ  EXPLANATION  OF 

Chap.  n.  s.  5.  not  permitted  to  the  seller  to  prove   that  the  auctioneer,  at 

Conlradiclion 

of  Deed       ' ' 

not  ailtuitted.  ^^s  to  shew  the  prisoner,  was  admissible.  Ely  et  al.  v.  Adams,  19  Johns.  Rep.  313. 

I  Whert  the  words  "  British  ■weig'ht,"  in  a  cliarter  parly  may  have  two  meanings, 

it  is  such  a  latent  ambisuily,  as  to  warrant  the  introduction  of  parol  testimony,  to 

shew,  whether,  in  commercial  usage,  it  is  un<Ierstood  to  mean  ^ro»s  or  nett  weight. 

Goddard  v.  Bidoiv,  1  JVoit  &  AP  Cord's  Rep.  45. 

Where  an  agreement  i.s  reduced  to  writing;,  Al  previous  negotiations  resting  in 
parol,  are  extinguished  and  cannot  be  resorted  to  for  the  purpose  of  helping  out,  or 
of  explaining  its  meaning.  Purkhurst  et  al  v.  Van  Cortland,  1  Johm.  Ch.  Rep. 
273.  Smith  v.  TVilliams,  1  Carolina  Law  Repos.  263.  n.  Cases  of  fraud  are  excep- 
tions to  this  rule.  ibid.     Et  vide  Marshall  v.  Sprott,  Addis.  Rep.  360. 

Piirol  evidence  is  inadmissible  to  su|.port  an  agreem  nt,  set  up  m  contradiction 
to  a  deed.     J[Iovanet  ux.  v.  Hays,  1  Johns.  Ch.  Rep.  339. 

So  to  pn)ve  a  title  to  the  service  of  a  servant,  where  the  plaintiff  has  set  out  in 
his  najv:  a  title  by  indenture.     Hall  et  al.  v.  Gardner  et  al.  I  jMass.  Rep.  171. 

The  date  of  a  policv  of  insurance  may  be  inquired  into  by  parol  testimony.  Earl 
V.  Sha-Wy  1  Johns.  Cas.  313. 

AVheie  several  lots  are  mortgaged,  the  mortgagor,  or  purchaser  under  him,  can- 
not set  up  a  parol  agreement  made  at  the  time  of  the  mortgage,  that  in  case  either 
of  the  lots  were  soM,  the  mortgagee  would  release  the  lot  so  purchased,  on  being 
paid  a  certain  sum  per  acre  by  the  purchaser.  Stephens  et  al.  v.  Cooper  et  al.  1 
Johm.  Ch.  Cas.  425. 

A  dei'endant  in  a  writ  of  partition,  sets  up  that  there  was  a  will  disposing  of  the 
land,  which  could  not  be  found  ;  he  proved  its  legal  execution,  that  the  testator  on 
his  death  bed,  recognised  its  existence,  and  when  it  could  not  be  found  said,  h'*  be- 
lieved it  must  have  been  left  with  J.  Al.,  who  drew  and  witnessed  it.  Held,  that 
parol  evidence  of  its  contents  was  admissible.  Reeves  v.  Booth  et  al.  2  Rep.  Const. 
Ct.  S.  Car.  334. 

Parol  evidence  received  to  prove  the  loss  and  existence  of  a  marriage  settlement, 
,  corroborated  by  oth- r  deeds,  referring  to  aii<l  speaking  of  the  settlement;  the  con- 

tents of  the  lost  <leed  also  ascertained  by  reference  to  other  deeds,  and  the  whole 
deed  of  settlement  construed.  Potts  v.  Cogdell,  1  Dessaus.Eq.  Rep.  454.  But  the 
drawer  of  such  settlement  shall  not  prove  that  the  mteniion  of  such  deed  is  differ- 
ent from  what  appears  on  its  face,  the  being  no  allegation  of  fraud.  Dupree  v, 
M'Bo7iald,  4  Bo.  209. 

Parol  evidence  of  a  parol  sale  of  land  in  a  case  not  tinctured  with  fraud,  will  not 
be  received,  .iskeiv  v.  Poyas,  2  Dsssaus.  Eg.  Rep.  145.  Givens  et  ux  .v.  Calder, 
ibid.\7l. 

But  it  is  admissible  to  explain  the  meaning  of  the  parties  in  marriage  articles, 
■when  a  conveyance  is  called  for.     Kennings  v.  Willis,  2  Call's  Rep.  5. 

Parol  evidence  of  the  conversation  beiween  the  testator  and  the  penner  of  his 
will,  as  to  the  occasion  of  particular  bequests,  admitted  to  shew  that  those  bequests 
were  in  satisfaction  and  lieu  of  an  anterior  provision  for  those  legatees  made  by 
deed  ;  and  the  legatees  put  to  their  election,  to  take  under  the  will  or  deed.  Web- 
ley  et  al.  v.  Lungstaffe.rr.  3  Dessaus.  Eg.  Rep.  504. 

So  to  prove  the  intention  of  the  testator,  to  dispose  of  the  property  in  a  manner 
not  apparent  on  the  face  of  the  will.  Rut  such  was  its  obscurity  that  the  testimony 
if  received,  would  not  have  explained  it.  Rothmahler's  admx.  v.  Myers  et  al.iBo. 
215. 

Quere,  if  parol  evidence  admissible  to  prove  that  a  patent  was  obtained  by  fraud. 
Withainton  v.  MBo7iald,  I  H.  &  Munf  Rep.  306.  Sed  vide  Eamdleton  et  al. 
V.  Wells,  ibid,  note,  307. 

Parol  evidence  not  admissible  to  shew  that  the  devisor  used  the  word  "  heirs,"  in 
a  different  sense  from  the  legal  meaning.  Ben  ex.  d.  Stith's  heirs  v.  Barnes,  1 
Carolina  Law  Repos.  i91. 


WRITTEN  INSTRUMENTS.  ^W 

the  time  of  the  sale,   had  given  public  notice  of  the  incum-chap.  ii.  s.  5. 

Contradiction 
_ ^ ^j.  ^^^^^ 

The  justice's  record,  tlie  justice  and  the  jury,  will  he  udmitted  to  testify  whethpi'iot   :i'imitie(!. 
a  cei'tain  claim  was  brought  in,  to  be  an  off-set,  on  a  trial  at  law  in  the  State  of  JNI'tw  — — — « 
York.  Stevens  v.  Paine,  2  Root''s  Rep.  83. 

A  parish  recortl,  containing  a  grant  of  money  by  the  inhabitants  of  a  parisli,  may 
be  contradicted.  Bangs  \.  Sno-m  et  ul.  IJ^Tass.  Rep.  181. 

Parol  evidence  admitted  to  prove  that  a  conveyance  was  acknowledged  in  Court 
at  a  different  time  than  that  stated  in  the  record.  Elliott's  les.  v.  Osbom,  I  liar. 
&  M'Hen.  Rep.Vi(>.  ' 

Parol  evidence  admitted  to  disprove  the  certificate  of  a  justice,  who  took  the  ac- 
knowledgment of  a  deed,  by  proving  an  alibi  of  the  grantor.  Smithy.  JTai-d,Q 
Root's  Rep.  374. 

A  Court  of  Chancery  will  give  relief  against  the  mistakes  of  a  scrivener  in  draw- 
ing a  deed  which  is  executed,  and  against  those  wishing  to  take  advantage  of  it.  J3/- 
more  v.  Austin,  ibid.  4l5. 

Parol  evidence  cannot  be  received  to  shew  that  a  deed  stating  a  course  for  tbirty- 
six  chains,  meant  twenty-nine  chains.  Jackson  ex.  d.  Piitnam  et  al.  y.  JBo-wen,t 
Caines'  Rep.  S.'iS. 

Where  a  printed  blank  polici/c>(  insurance  on  cargo  was  used,  and  the  blank  filled 
up  on  profits,  and  the  valuation  in  writing  when  taken  in  connection  with  the  printed 
■words  was  a  valuation  of  the  goods,  parol  evidence  was  held  inadmissible  lo  explain 
the  intention  of  the  parties,  there  being  no  ambiguity  in  the  words  as  they  stood. 
jMumfordv.  Jlallett,  1  Johns.  Rep  433. 

In  an  action  on  a  bond  given  for  the  price  of  a  chattel  sold,  the  defendant  cannot 
give  in  evidence  a  want  or  failure  of  consideration  on  the  ground  of  false  represen- 
tation or  warranty  of  the  chattel  sold.    Vrooman  v.  Phelps,  '2  Johns    Rep.  177. 

In  an  action  by  the  assignee  of  a  bond  against  the  obligoi',  parol  evidence  that  the 
principal  or  interest  of  the  bond  was  intended  to  have  been  made  payable  at  a  later 
date  than  appeared  on  the  face  of  it,  is  inadmissible.  Davis  v.  Cammel,  Addis. 
Hep.  233.     Cook  v.  Ambrose,  ibid.  323. 

Where  by  articles  of  agreement  a  stipulation  was  entered  into  to  give  a  deed  of 
conveyance ,  evidence  was  admitted  lo  prove  that  the  parties  intended  a  deed  con- 
veying the  \y:ni\  free  from  all  incumbrances.  Zantzinger  v.  Ketch,  4  Dull.  Rep.  132, 

A  contract  unde''  seal  wlis  set  aside  in  Equity  upon  circumstantial  evidence  of  its 
abanilonment.     Cringan  et  al.  v.  JVicholson's  exrs.  1  Ifen.  &  J[I.  Rep.  428. 

If  defendant,  in  his  answer  to  a  bill  in  Chancery  to  compel  the  si.ecific  execution 
of  a  written  agreement,  deny  the  obvious  interpretation  thereof  accordmg  to  its 
woi'ds,  parol  evidence  on  the  part  of  the  complainant  is  admissible  to  explain  it. 
Coutts  V.  Craig,  ibid.  618. 

An  agreement  completed  by  the  execution  of  the  proper  deeds  of  conveyance, 
cannot  be  altered,  unless  then*  he  fraud,  or  manifest  error  or  mistake,  when  it  may 
be  corrected  in  Equity.     Vance  v.  Walker,^  Hen.  &  JM.  Rep.  288. 

\i  A.  agree  under  seal  to  sell  B.  a  tract  of  land  lying  on  a  certain  creek  without 
specifying  any  boundaries,  and  a  p. irlicular  tract  is  shewn  to  B.  as  the  land,  parol 
evidence  may  be  admitted  lo  shew  either  that  A.  had  no  land  there,  or  not  that  par- 
ticular tract.     Buster's  exrs.  v.  Wallace,  4  Hen  &  M.  Rep.  82. 

Notwithstanding  an  absolute  6«r^flm  and  sale,   and  receipt  at  the  foot  thereof  in 

lull  for  the  consideration  cxpressi'd  therein,  the  vendor  under  certain  circumstances 

may  retain  an  equitable  lien  on  the  land  for  the  purchase  money,  even  against  a 

vendee  having  notice  of  such  an  agreement  between  the  parties.     Duval  v.  liibb, 

'Ad.  113. 

A  vendor  who  has  given  a  conveyance  and  delivered  possession,  has  not  a  lien  for 
lie  purchase  money  due  on  a  bond,  against  a  subsequent  judgment  creditor.  Semple 
Btird,  7  Si-rg.  &  R.  Rep.  286.    Et  vide  Kauffdt  v.  Bower,  ibid.  64. 

A  a 


l^g  EXPLANATION  01' 

Chap.  II.  s.  5.  brance.(l)(c)  In  like  manner,  where  printed  conditions  ol"  sale  ol 
^"of^Dee'd""  ti"^ber,  growing  on  a  certain  close,  omitted  to  state  any  thing  ot 
liot  admitted,  the  quantity,  parol  evidence  that  the  auctioneer,  at  the  time  ot 
— — — —  the  sale,  warranted  a  certain  quantity,  is  not  admissible.(2)  So 
(1)  Guniiis  V.  where  a  bond  is  conditioned  for  the  performance  of  certain  acts. 
Black.  282.  the  condition  is  conclusive  on  the  parties,  and  cannot  be  coni 
trolled  by  any  parol  evidence  that  the  agreement  was  other- 
Edinumls,  w'ise,(3)(c?)  nor  is  such  evidence  admissible,  unless  for  the  pur- 
12  East,  6.  pQgg  of  shewing  that  the  instrument  is  void  altogether,  as  being 
(3)  Buckler    obtained   by  fraud  or  misrepresentation.     So  where   a  promis- 

2  VeiuTo7    ^^^y  "^^^  ^^  made  payable  on  demand,  evidence  cannot  be  ad- 

mitted to  shew  that  it  was  not  to  be  paid  till  after  the  death  of 
bridge T°  '     ^'^^  maker.(4)'(e)     But  if  an  ambiguity  arise,  it    may  be   ex- 

Spooner, ] 

3  Barn.  8c 

Aid-  233.  Though  a  deed  refer  to  matter  extrinsic,  to  explain  which  a  resort  to  parol  evi- 

dence may  be  nteessary,  that  will  not  authorise  parol  evidence  to  be  givi-n  to  explain 
or  contradict  the  dt-e<l  itself.  South  Carolhia  Society  v.  Johnson,  1  JM'-Cord.  Rep. 
41.    Et  vide  JMilling  et  al.  v.  Crankjield,  ibid.  258. — Am,  En. 

(c)  The  general  rule  of  law  is,  that  parol  evidence  of  declarations  of  an  auction- 
eer to  contradict  the  written  terois  of  sale,  are  not  admissible.  Les.  of  Wright  v. 
Deklyne,  1  Peters''  Rep.  199.  Sed  vide  contra  iVcdrnvnglU  v.  Readet  al.  1  Des- 
sau^. Eq.  Rep.  573.— Am.  Ed. 

(</)  Parol  evi  lence  is  admissible  to  sliew  that  when  a  bond  was  executed,  it  was 
agreed  that  it  should  be  void  on  a  particular  conting<jncy.  Field  et  al.  v.  Riddle, 
2  Dall.  Rep.  171.  S.  C.  1  Fmtes'  Rep.  132.  Et  vide  3  Bi?in.  Rep.  315. 

.So  that  it  was  delivf  red  as  an  escro-u).  Skinner  v.  Hendrick,  1  Root's  Rep.  252. 
l'a~vling  et  al.  v.    U.  Slates,  4  Crunch's  Rep.  £19. 

So  in  Chancery,  that  a  bill  of  sale  of  chatiels,  though  absolute  on  its  face,  was  in- 
tended as  a  mortgajje.  Ross  v.  J\'orveU,  I  Wash.  Rep.  19.  JVIarks  et  al.  v.  Pell, 
1  Johns.  Ch.  Rep.  594.  Strong  et  al.  v.  Stewart,  4  Bo.  167.  Babney  v.  Green,  i 
Hen.  &  JMunf.  Rep.  101. 

So  of  a  deed.  Washburn  v.  Mernlls,  1  Bay's  Rep.  139.  Ray  v.  Bush,  I  Root's 
Rep.  81.  Morgan  v.  Minor,  2  Bo.  220. 

That  a  conditional  note  was  delivered  as  an  escrow.  Conchy.  Meeker,^  Con. 
Rep.  302.  El  \\(]c  Flemings  v .  Willis,  2  Call's  Rep.  5.  Robertson  v.  CampbeR,ibid. 
421.  Gatcivond  v.  Bums,  3  Bo.  194  Herbert  v.  Wise,  ibid.  2.'?9.  Babney  et  al.  v. 
Greei),iH.&  Mimf.Rep.  101.  Chapman  \.  Turner,  I  CaU's  Rep.  280.  £Jng  v. 
J\;''eiiman,  2  Munf.  Rep.  40.  Contra,  The  adm.  ofMTeer  v.  Slieppard,  1  Bay's 
Rep.  461.  Holmes  v.  Simons,  3  Bessnus.  Eq.  Rep.  149.  Bickerson  v.  Bickerson, 
1  Carolina  La~v  Repos.  262. 

Parol  evidence  that  a  note  was  given  as  an  indemnity,  is  inadmissible.  Perkins  v. 
Kent,  1  Root's  Rep.  312.  Et  vide  Converse  v.  Motdton,  2  Bo.  195. 

So  that  a  note  for  value  received  was  given  for  a  consideration  bad  in  law.  Ketchum 
v.  Scribner,  1  Root's  Rep.  95. 

Where  no  place  is  mentioned  in  a  note,  at  which  the  money  is  to  be  paid,  parol 
evidence  is  admissible  to  shew  at  what  place  it  was  agreed  to  pay  it.  Thompson  v 
Ketcham,  4  Johns.  Rep.  285. — Am.  En. 

(<?)  Parol  evidence  is  admissible  in  an  action  by  (he  endorsee  against  the  endor- 
ser of  a  note,  endtrsed  in  blank,  to  shew  that  at  the  time  ot  the  endorsement,  the 


WRIITEN  INSTRUMENTS,  lyq 

piaineil  by  evidence,  though,  in  this  case,  a  distinction  has  been  chap.  ii.  s.  5. 
made  between  what  is  called  a  latent  amhis-uity,  and  that  which '*l^i'','*""'"°"^'' 

rr.1       I    ^  ,,       .        .       ,  ?.    ,       ,  Aiiil)igiiiiies. 

IS  not  so.      Ihe  latent  ambiguity  is  that  whicli  does  not  appear  _______^ 

on  the  face  of  the  instrument,  where  every  thing  seems  i'ightMw^,^^.3^ 
and  clear,  but  the  meaning  being  rendered  uncertain,  by  the  ^  "''"'»"' 
proof  of  some  fact,  the  law   permits   the  removal  of  the  doubt  chenv's  case, 
by  the  like  evid  ence.  5  Co. 68.  s.  P. 

And,  therefore,  where  a  testatrix  devised  her  estate  to  her(2)  Doe  dem. 
cousin,   John    Chier,    there    being  both  father  and  son  of  that  S""'''' ■"• 

1         •  1  1-1  Daiivers, 

name,  parol  evidence  was  admitted  to  shew  that  the  son  was  7  East, 299, 
the  person  meant  ;(1)  and  where  a  devise  was  made  to  one  by 
the  name  of  Mary,  whose  name  was  Elizabeth,(Q)  this  also  was 
permitted  to  be  cleared  up  by  parol  evidence,(/)*  for  in  all  these 

endorsee  received  the  note  under  an  agreement,  that  he  should  not  have  recourse 
upon  it  to  the  endorser.  Hillw  Ely,  5  Ser^.&  R.  Rep   363. 

Where  detendant  endorsed  in  blank  the  note  on  which  suit  was  brought,  he  can- 
not prove  th;it  his  endorsement  was  merely  for  the  purpose  of  a  power  of  attorney. 
Hungerford  ■V .  Tliomson,  Kirb.  Rep.  393.  Vide  1  Root's  Rep.  201.  Smith  v.  Barker, 
ibid.  207. 

The  makers  and  endorsers  of  a  promissory  note  may  legally  stipulate  by  a  parol 
agreement  that  there  shall  be  no  recourse  over  to  them  under  certain  circumstances 
Cummiiiffs  v.  Finher,  1  Anth.  J\\  P.  Cas.  4. 

In  an  action  of  scire  facias  against  bail,  the  defendant  pleaded  that  another  person 
ef  the  same  name  and  description  became  bail,  and  traversed  that  he  was  the  person 
named  in  the  bail  piece.  At  the  trial  it  was  proved  that  the  iiume  of  ElnaC/ian 
JVoble  was  inserted  in  the  bail  piece  ;  but  Stephen  JXorton  was  the  person  who  in- 
tended to  become  bail,  and  who,  in  tact,  appeared  before  the  Judge  who  signed  the 
acknowledgment  on  the  bail  piece.  It  was  held,  that  this  evidence  was  admissible, 
and  sufficient,  on  the  issue  joined,  as  to  the  identity  of  the  person.  Renoard  v.  JVo- 
ble, 2  Johns.  Cas.  293. 

In  an  action  of  ejectment  for  a  lot  in  the  military  tract  on  the  demise  of  P.  S.  the 
plaintiff  produced  in  evidence  a  patent  to  P.  S.  issued  in  pursuance  of  Slat,  in  JVew 
York.  The  defendant  proved  iliat  there  was  another  person  of  the  name  of  i'.  S. 
in  existence,  who  was  tod  )oung,  during  the  revolutionary  war,  to  be  a  soldier,  and 
the  lessor  of  the  plaintiff  hud  nai  himself  been  a  soldier  during  that  war  ;  and  it  was 
held  upon  this  evidence,  that  the  defendant  was  entitled  to  judgment.  Jackson  ex- 
d.  Shultze  et  al.  v.  Goes,  13  Johns.  Rep.  518. — Am.  Ed, 

(_/")  A  will  must  be  judged  of  ex  visceribus  suis,  and  where  there  is  neither  la- 
tent nor  />a^e7j<  ambiguity,  extrinsic  evidence  shall  not  be  received.  Duncan  v, 
Duncan  et  al.  2  Yeates''  Rep.  302.  JVlann  et  al.  v.  J\'Iann  et  al.  1  Joh7is.  Ch.  Rep. 
321  ;  and  confirmed  in  Error,  14  Johns.  Rep.  I. 

Parol  evidence  is  inadmissible  to  explain,  vary,  or  enlarge  the  words  of  a  will, 
except  in  the  case  of  a  latent  ambiguitv,or  to  rebut  a  resulting  trust.  JMami  et  al.  v. 
The  exr.ofMann  et  al.  1  Johns.  Ch.  Cas.  231;  and  confirmed  on  appeal.  14 
Johns.  Rep.  I. 

A  latent  ambiguity  may  be  explained  by  parol.  Peischv.  Dickson,  1  Mason's 
Rep.  10. 

•  Thomas  dem.  Evans  v.  Tlwmas,^  T.  Rep.  671.  The  testator,  after  several 
devises,  proceeded  thus:  Item,  I  give  to  my  four  daughters,  Margaret,  Anne, 
Mary,  and  Elizabeth,  one  shilling  each  :  item,  I  give  to  my  grand-children  of 
Llanteivay,Anne,  Elizabeth,  and  Elinor,  40/.  each:  item,   I  give  to   my  grands 


/[80  EXPLANATION  OF 

Chap.  11.  s.  5.  cases,  the  lieir's  objection  arose  from  parol  evidence,  and  there 
^"iat^nt*"'  ^^^^  parol  evidence  ought  to  be  received  to  answer  it.     So  if  a 
.  man  liaving  two  manors  called  Dale,  levy  a  fine  of  the  manor 

(i)  Roll.  of  Dale,(^l)  without  further  description,  circumstances  may  be 
Abr.  676.  giver  in  evidence  to  prove  which  manor  was  intended,  for  this 
(2)  Doe  riem.  is  not  to  contradict  the  record,  but  to  support  it.(2)  And,  in 
Freeiand  v.  nj^p  manner,  where  a  man  having  a  house  in  London,  and  also 
iT.ilep.  701.  wine  vaults  under  a  yard  belonging  to  it,  which    wine  vaults' 


P:irol  evidence  is  not  admissible  tn  shew  that  a  scrivener  in  drawing  a 'will,  in- 
serted words  of  the  meaning  of  which  he  was  ignorant,  in  order  to  vary  tSt  effect 
of  if*  dispositions  althoiig;b  it  maj-  be  received  to  explain  a  latent  ambigxdty,  or  to 
rebvt  (I  resitUing  trust,  cr  in  case  of  fraud  or  mistake,  to  annul  the  will.  Iddings  et 
al.v.  Iddinga,  7  Serg.  &  R.  Re  Ik  111. 

It  seems,  the  rule  allowing  p:irol  evidence  in  regard  to  written  instruments,  ought 
rather  to  be  restrained  than  extended,  ibid. 

Parol  evidence  is  not  admissible  to  shew  the  inadequacy  of  the  personal  estate  of 
the  testatrix  to  satisfy  thepurjioses  of  the  will;  but  with  regard  to  real  estate,  parol 
evidence  would  be  admissible  for  that  purpose,  if  an  intention  to  pass  realty  appeared 
on  the  will.  Jones  y.  Ciirrij,  1  S^i'a7isto7i''s  Ch.  Rep.  66. 

Parol  evidence  is  admissible  to  prove  that  a  legacy,  given  to  Samuel  P.  was  in- 
tended for  William  P.  though  there  were  persons  of  both  names.  Poruell  v.  Biddle, 
2  Ball.  Rep.  70. 

So  if  there  be  a  devise  of  a  lot  "  on  Third-street,  in  the  occupation  of  J.  iS*."  and 
the  lot  lies  on  Fourth-street,  and  w  as  in  the  occupation  of  /.  S.  this  is  a  latent  am- 
bigaily,  and  may  be  explained  bj  parol  evidence,  ies.  of  allien  v.  Lyons,  C.  C. 
Jan.'lBll,M.  ,S.  Re[>. 

A  patent  was  granted  to  David  II.  and  parol  evidence  was  admitted  to  shew  that 
Daniel  H.  was  intended.  Jackson  ex.  d.  Dickson  et  al.  v.  Stanley,  10  Johns.  Rep, 
133.  Et  vide  Jackson  ex.  d.  Shnltzet  al.  v.  Goes,  13  Do.  513.  Sed  vide  Jackson 
ex.  d.  Houseman  v.  Hart,  12  Do.  77. 

Parol  evidence  of  the  testator's  circumstances,  and  connection  with  the  legatees, 
between  the  making  of  his  will  and  death,  m.ay  be  admitted  to  discover  his  intention- 
Shelton's  exrs.  v.  Shelton,  1  Jfash.  Rep.  69. 

Where  the  words  in  a  will  arc  susceptible  of  reference  to  two  objects,  viz.  a 
freehold  in  the  lauds  or  rents,  which  had  previously  accrued,  parol  evidence  may  be 
admitted  to  shew  to  which  they  apply,  Els~Morlh  v.  Buckmeyer,  1  A''ott&  Jlp  Cord's 
/?e/>.  431.— Am.  Ed. 

daughter,  Elinor  Eva7is,  of  Jl/ert/i^/c  parish,  40/. :  item,  I  devise  to  ray  grand- 
DAUGHTEii,  Jl/flr?/ T/iomfls,  of  Lt-kchllotd  IN  Merthtr  parish,  the  reversion  of 
the  house  in  f'Vater-street,  &c.  At  the  time  of  his  death,  the  devisor  had  a  grand- 
daughter named  Elinor  Evan^,  who  lived  in  Llechllotd  in  JMerthyr  parish,  and  a. 
great-grand-daughter,  JMary  Thomas,  an  infant  of  about  the  age  of  two  years,  the 
grand-daughter  of  his  eldest  daughter,  Jilargaret,  by  her  second  husband,  John 
Thomas,  being  the  only  [)erson  of  that  name  in  the  family  ;  but  it  appeared  that  she 
lived  at  Greencastlc ,  in  the  parish  of  Llangain,  some  miles  from  JMertliyr  parish,  in 
which  latter  pai  ish  she  had  never  been  in  her  life.  At  the  trial,  the  plaintiff's  counsel 
proposed  giving  parol  evidence,  to  shew  a  mistake  in  the  name  of  the  devisee,  that, 
when  the  v»ill  was  read  over  to  the  devisor  by  a  Mr.  Phillips,  who  drew  it,  and  who 
is  since  dead,  the  devisor  said  that  there  was  a  mistake  in  the  name  of  the  woman  to 
whom  the  house  was  given  ;  that  Phillips  then  said  he  would  rectify  it,  bui  the  de- 
visor answered  there  was  no  occasion,  as  the  place  of  abode  and  the  parish  would  be 
sufiicitnt.     To  iliis  evidence  the  defendant's  counsel  objected,  contending,  that  (here 


WRITTEN  INSTRUMENTS.  ^g^i 

were  in  the  occupation  of  B.  and  held  as  a  distinct  tenement,  chap.  ii.  s.  5, 
demised  part  of  the  house  and  the  yard,  by  the  description  of  Ambiguities, 
"  one  room  on  the  ground  floor,  and  a  cellar  thereunder,  and  a  " 

vault  contiguous  and  adjoining  thereto,  together  with  the  ground  - 
whereon  the  same  now  stand,  and  together  with  a  piece  of 
ground  on  the  north  side,  (being  the  yard)  in  the  occupation  of 
A.'^  he  was  not  estopped  by  the  deed  from  shewing  that  the 
vaults  under  the  yard  were  a  distinct  tenement,  and  not  in- 
cluded in  the  deed,  though  primafacie  the  property  in  the  vault 
would  pass  by  such  a  demise. 

In  the  cases  cited  above,  of  two  estates  or  two  persons  of  the 
same  name,  or  a  mistake  in  the  name  of  the  devisee,  we  may 
observe  that  the  words  used  in  the  instrument  were  clear  in 
themselves,  but  that  the  extrinsic  circumstances  introduced  by 

was  not  that  ambigidtas  latens  which  authorised  the  receiving  of  parol  evidence. 
•  But  Lawuence  J.  received  it,  subject  to  ttie  opinion  of'lhe  Court,  as  to  its  admissi- 
bility, in  case  the  jury  should  be  of  opinion  that  the  name  JMary  Thomas  had  by 
mistake  been  insei'ted  instead  of  Elinor  Evans  ;  but  the  jury  being  of  opinion  that 
there  was  no  such  mistake,  they  were  directed  to  find  for  the  defendant  on  the  first 
count,  which  they  accordingly  did,  and  consequently  aoy  further  consideration  on 
this  point  became  unnecessary.  Tlie  defendant's  counsel  then  offered  evidence  of 
the  declarations,  made  by  the  devisor  at  other  times  previous  to  the  making  his  will, 
expressive  of  his  regard  for  his  great-grand-daughter,  and  of  his  intention  of  giving 
her  the  premises  in  question.  This  evidence  was  rejected  by  the  learned  Judo'e, 
■who  thought  that  nothing  dehors  the  will  could  be  received  to  show  the  intention  of 
the  devisor,  which  could  only  be  collected  from  the  words  of  the  will  itself,  after  the 
removal  of  any  latent  ambiguity  there  might  be  in  the  description  of  persons  or 
other  terms  made  use  of  in  the  will  ;  and  the  jui-y,  under  his  direction,  found  for  the 
plaintiff  in  the  several  counts  on  the  demises  of  the  heirs  at  law,  on  the  ground  that 
the  devise  was  void  for  uncertainty,  giving  the  defendant  leave  to  move  to  enter  a 
nonsuit.  A  motion  was  mwle  accordingly,  but  the  rule  discharged,  on  the  ground 
that  the  parol  evidence  which  was  propcily  admitted,  laised  the  uncertainty,  and 
that  that  uncertainty  could  not  be  removed  bj  declarations  made  by  the  testator 
long  before  the  making  thi-  will.  But  Loid  Kenyov  there  said,  that  had  these  de- 
clarations been  made  at  the  time  of  making  the  will,  he  should  have  thought  they 
ought  to  have  been  ri^ceived  in  evidence.  So  where  2  testator  after  several  re- 
mainders devised  to  G.  n.  eldest  son  of./?,  and  his  children,  in  strict  settlement 
and  in  default  of  issue  of  the  children  of./'.  H.  to  the  third  son  a\\i.  with  the  like 
limitations,  parol  evidetice  was  admitted  of  the  state  and  circumstances  of  the  testa- 
tor's family,  and  it  was  heM,  that  upon  such  evidence  being  given,  it  became  a  ques- 
tion of  fact  for  the  jury,  whether  the  mistake  was  in  the  name  or  the  description  ? 
Doe  d.  Chevalier  v.  Hultviaite,  3  Barn.  &  Aid.  632. 

In  Lord  Walpoley.  The  Earl  of  Cholmondeley,  7  T.  Rep.  138,  the  testator  had 
made  a  will  in  1752,  and  another  in  175G,  without  disposing  of  his  personalty  :  liy  a 
codicil,  (reciting  that  by  his  last  -will  dated  in  1752,  he  had  made  no  disposition  of 
his  personalty,)  he  disposed  thereof,  and  appointed  executors;  it  was  ruled  that 
there  was  no  such  latent  ambiguity,  as  to  let  in  parol  evidence  to  shew  that  the  tes- 
tator intended  by  the  codicil  to  confiim  the  will  of  17.56,  and  not  to  re-publish  thai 
in  1752;  and  that  will  was  therefore  determined  to  be  a  subsisting  will  at  the  time 
-f  his  death. 


^g2  EXPLANATION  OF 

Chap.  II.  s.  5.  evidence  rendered  the  meaning  so  uncertain,  as  to  deprive  the 
Ambiguities,  instrument  of  any  operation  whatever,  and  therefore  further  evi- 

dence  was  admitted  for  the  purpose  of  preventing  it  from  being 

wholly  inoperative.  But  where  the  extrinsic  circumstances  do 
not  go  to  that  extent,  and  there  is,  notwithstanding,  the  doubt 
they  create  a  sufficient  estate  to  satisfy  the  words  of  the  instru- 
ment according  to  one  meaning  of  the  description,  collateral 
evidence  is  not  admissible  to  shew  that  the  grantor  or  testator 
meant  to  use  the  description  in  a  more  extended  sense.  Lord 
Bacon's  Max-  Bacon  commenting  on  the  maxim  "  Non  accipi  debent  verba  in 
iws, //.  demontrationem falsam  quse  compehmt  in  limitationem  veramP 

says,  "  If  1  have  some  land  wherein  all  these  demonstrations 
are  true,  and  some  wherein  part  are  true  and  part  false,  then 
shall  they  be  intended  words  of  true  limitation  to  pass  only 
those  lands  wherein  all  the  circumstances  are  true."  Several 
cases,  some  in  ancient  times  and  others  of  more  recent  date., 
have  occurred  on  this  point ;  and  as  the  latter  have  undergone 
(1)  White-  much  discussion,  I  shall  only  refer  to  them.  In  one(l)  a  tes- 
head  V.  May,  ^^^or  devised  his  "  estate  at  Leeshill,  in  the  county  of  Wilts. 

o  Bos,  oC   i  Ui 

593.  and  Hearne,a.r\d  Huckland,  in  tjie  County  of  .ffcn/."  At  the  lime 

of  making  his  will  he  had  lands  in  Hearne  and  other  parishes  in 
Kent,  which  he  had  purchased  at  the  same  time.  It  was  pro- 
posed on  the  part  of  the  devisee  to  prove  that  the  testator  used 
to  call  all  the  land  by  the  general  description  of  his  Hearn  Es- 
tate, and  that  he  had  sold  Buckland  before  his  death,  and  this 
for  the  purpose  of  shewing  that  he  meant  the  lands  in  the  other 
parishes  to  pass.  The  Court  of  Common  Pleas  was  divided  on 
the  question,  whether  this  evidence  was  admissible  ?  but,  on  a 
writ  of  error,  the  House  of  Lords  decided  it  was  not.  In  a  sub- 
'2)Doedem.  Sequent  case,(2)  the  testator  devised  his  "estate  of  Ashton'^ 
Chichester  I),  g^jjj  \^  bein»  provcd  that  he  having  a  maternal  estate,  compre- 

Oxendon,  3  ^  ^  ■      ,    r  -ii 

Taunt.  147.    hending  a  manor,  capital  farm,  and  lands  in  that  parish,  and 

several  other  estates ;  some  in  the  adjacent  parishes,  and  some 

ten   and  fifteen  miles  distant,  evidence  was  offered   to   prove 

that  he  was  accustomed  to  call  all  his  maternal  estate  by  the 

general  description  of  his  "  Ashton  Estate,''^  for  the  purpose  of 

raising  an  inference  that  he  meant  to  devise  the  whole  by  that 

name  ;  but,  on  solemn  argument,  it  was  held,  that  this  evidence 

,'■3' Doe  dem.^^'^s  inadmissible.    Again,(3)  where  the  testator  devised  "all  the 

Browne  v.      estate  and  interest  which  he  had  or  could  claim  either  in  posses- 

Mau."&"sel.   sion  or  reversion  of  or  in  any  lands,  tenements  or  hereditaments 

i''^-  at  Coscomb  ;  it  was  holden,  that  evidence  was  not  admissible  to 

shew  that  another  estate,  not  at  Coscomb,  was  formerly  united, 

and  had  been  ever  since  enjoyed  with  the  estate  at  Coscomb,  for 


WRITTEN  INSTRUMENTS.  ^§3 

xUa  purpose  of  proving  that  such  estate  passed  under  the  devise,  ciiap.  11.  s.  5, 
In  another  case,(l)  a  person  being  seised  of  a  messuage  and  lands  ■'^'"'Jigu't'es, 

in  a  parish,  and  of  a  messuage  and  lands  in  the  hamlets  of  B. 

and  C.  in  the  same  parish,  which  he  had  purchased  of  .^.  let  the(^^  Q„e  ,jy^ 
whole  to  a  tenant  at  one  entire  rent;  and  having  other  lands '^'y''*^"  ■^'- '->- 
allotted  to  him  under  an  inclosure  Act,  in  lieu  of  all  other  lands,  s.  550. 
except  two  acres  and  a  messuage,  which  remained  as  before, 
all  which  the  tenant  continued  to  hold  at  the  same  rent,  devised 
"all  his  messuage,  farm,  lands  and  premises,  with  the  appurter 
nances,  situate  in  the  hamlet  of  B.  which  he  had  lately  pur- 
chased of  Jl ;"  and  in  this  instance  also  the  Court  held  that  the 
lands  in  the  hamlet  of  C.  did  not  pass,  and  that  evidence  dehors 
the  will  (viz.  a  notice  to  quit,  describing  all  the  premises  as  in 
C.)  to  shew  that  he  intended  to  pass  all  the  lands  which  he  pur- 
chased of  ^.  was  inadmissible.     Again, (2)  where  a  testator  de- 
vised to  his   wife  all  his  wines  for  housekeeping,  in  addition  to(2)Doe  dem. 
the  settlement  he  made  her  upon  his  copyhold  estate ;  and  to.^.J5|!^'J^,^*^^ 
the  rents  and  profits  of  his  new  inclosed  freehold  cow  pasture  East,  44i. 
close,  in  North  Collingham,  during  his  life  ;  and  then  to  two  ne- 
phews all  his  personal  estate,  to  be  divided,  &c. ;  and  after  the 
decease  of  his  wife,  he  devised  to  the  same  two  nephews  all  his 
furniture,  plate,  &c.  and  all   his  copyhold  estate  in  North  and 
South  Collingham,  and  all  other  his  personal  estate,  to  sell  and 
divide  among  his  nephews  and  nieces  ;"  in  this  case  also  the 
Court  held,  that  extrinsic  evidence  could  not  be  received  ;  that 
the  settlement  on  the  wife  included  a.  certain  freehold  close  mis- 
takenly there  enumerated  as  one  of  several  copyhold  closes  set- 
tled, the  bounds  of  which  were  no  longer  distinguishable  from 
those  of  the  freehold,  for  the  purpose  of  shewing,  that  by  the 
devise  of  all  his  copyhold  estate,  after  his  wife's  decease,  the 
freehold  close  in  question  passed  as  part  of  the  real  estate  in  set- 
tlement on  his  wife.     The  Court  also  held,  that  as  the  settle- 
ment was  not  evidence,  so   neither  were  other  instruments  and 
papers  not  referred  to  in  the  will ;  as  1st.  A  bond  of  the  same 
date  as  the  settlement,  and  in  aid  of  it,  speaking  only  of  copy 
hold  to  be  settled  ;  2dly.  The  rough  draft  of  the  settlement  al- 
tered by  the  testator  ;  3dly.  A  book  endorsed  "  Collingham  Es 
tale  Survey,^'  kept  with  the  muniments  of  his  property,  and  in- 
cluding the  freehold  in  question,  without  distinguishing  it  from 
the  copyhold  closes  ;  and  4thly.  A  rental  kept  in  the  same  place, 
on  which  was  endorsed  by  the  testator,  that  all  the  rents  of  the 
copyhold  lands  in  North  and  South  Collingham,  were  settled  on 
his  wife  for  life.  The  reason  assigned  for  this  last  decision  was, 


l^^  EXPLANATION  OF 

Chap.  II.  s.  5  that  there  was  no  ambiguity  on  the  face  of  the  will,  the  testator 
^™aent"  *'  '^^ving  estates  in  North  and  South  Collin gham,  to  answer  the 
„____^__  description  in  it ;  nor  was  there  any  reference  from  the  devise 
in  question  to  the  settlement,  but  by  connecting  it  with  the  an- 
tecedent devise  to  the  wife,  and  there  was  no  such  necessary 
connection. 

There  is  another  class  of  cases  which  must  be  distinguished 
from  the  preceding,  not  so  much  on  the  subject  of  admissibility 
of  evidence,  as   on   the  construction   of  the  instrument  itself. 
The  cases  last  cited  are  those  where  there  was  one  description 
of  the  thing  granted  or  devised,  which  it  was  necessary  to  take 
altogether  for  the  purpose  of  its  construction.  Those  now  under 
consideration  are,  where  there  is  a  sufficiently  clear  description 
at  first,  but  some  unnecessary  words  are  afterwards  added.(^) 
The  distinction  which  has  been  made  between  these  two  des- 
criptions of  cases  is  this,  viz.  "  where  the  grant  is  in  general 
terms,  the  addition  of  a  particular  circumstance  will  operate  by 
way  of  restriction,  and   modification,  but  where  there  is  a  grant 
of  a  particular  thing  once  sufficiently  ascertained  by  some  cir- 
cumstance belonging  to  it,  the  addition  of  an  allegation  mistak- 
(1)  Roedem.en  or  false  respecting  it,  will  not  frustrate  the  grant  ;"(1)  or,  as 
Vernon,         it  has  been  rather  more  quaintly,  though  not  less  intelligibly, 
5  East,  51.      expressed^  that  "  the  sentence  being  perfect  before,  the  subse- 
quent words  shall  be  taken  as  words  of  suggestion  and  afilrma- 
2)  Roll.        tion,  and  not  of  restriction  or  limitation."(2)     Thus,  where  a 
'     '^       grant  was  made  of  all  tithes  belonging  or  appertaining  to  the 
grantor  within  a  particular  parish,  and  then  followed  "all  which 
were  lately  in  the  possession  of  Margaret  Peto,  widow,  deceas- 
ed ;"  all  the  tithes  within  the  rectory  were  holden  to  pass,  though 
(3)  Vicars      none  of  them  had  been  in  the  possession  of  Margaret  Peto.{5) 
LitchHeid  v.    So  where  a  testator  devised  all  his  farm  called  Trogues  Farm, 
Ayresand      {^  the  occupation  of  A.  C;  and  it  appeared  that  only  part  of  the 
Sir  t!  Jones,  land  SO  called  was  in  such  occupation,  it  was  holden  that  the 
*55.  rest  of  the  land  passed  ;  and  evidence  was  admitted  of  a  notice 

to  quit,  given  to  a  third  person,  who  held  part  of  the  lands,  of 
which  the  lands  so  holden  were  described  as  part  of  and  belong- 
(^4)  Goodtitie ing  to  Trogues  Farm.[A)     In  another  case, (5)  the  testator  de- 
r^Southern'   vised  all  her  "  Britton  Ferry  estate,  and   all   the  manors,  &c. 

1 M.  &  S.  229. 

(5)  Doe  d em.  (^)  Where  descriptive  words  in  a  contract  include  an  immaterial  circumstance, 
Beachr  Lord  this  i$  not  to  be  construtd  as  a  stipulation  or  condition,  rendering  thi-  whole  depen- 
Jersey.lBarn.  jj,^^  on  that  circumstance.  Manhj  v.  The  Un.  M.&Fire  Ins.  Co.9  Alass.  Rep.  85. 
tcAld.SoO.         ^    .  ,      ,     .  ,         J    ■  •    .  .     I    .,  .  ■     ji 

It  IS  a  general  rule  that  general  words  m  an  mstrument,  shall  be    restramed  by 

particular  expressions  in  it.  Lyman  v.  Clark  et  al.  9  Mass.  Hep,  235.  Bott  v.  Bur- 
nell.  11  Do.  1C3.— Am.  Ed, 


WUITTEN  INSTRUMENTS. 


185 


thereto  belonging,  and  of  which  the  same  consisted  with  the  ap-  ciia-i.  ii.  s.  5. 
purtenances  ;  and  afterwards   devised  to  another  person  ano-  Anj^iignities, 
ther  estate,  adding,  "  which  as  well  as  my  Brifton  Ferry  estate,       ' 
is  situate  in  the  County  of   G.;"  and  the  Court  held,  that  the 
latter  words   did  not  restrain  the  former  general  devise  of  the 
Briiton  Ferry  estate,  but  that  all  land  known  by  that  description 
passed,  though  locally  situate  in  another  county.     In  this  lat- 
ter case  it  was  strongly  contended,  that  even  without  the  sub- 
sequent words,  "  in  the  County  of  G."  the  words  "  Britton  Ferry 
estate"  necessarily  confined  the  devise  to  such  land,  as  was 
within  the  parish  of  Britton  Ferry,  and  were  in  effect  the  same  Ante,  tSi. 
as  "  my  estate  of  Ashton^''   which  was  the  expression  in  Chi- 
chesterv.  Oxendon ;  but  the  Court  held  otherwise,  saying,  that 
the  words.  "  Britton  Ferry  estate,"   was  a  description  by  name, 
whereas  the   words   "  estate  of  Ashton,'^   was    description   by 
jilace. 

By  the  established  rules  of  all  Courts,  whether  of  legal  or 
equitable  jurisdiction,  some  facts  are  presumed,  though  not  ex- 
pressly proved  ;  but  as  such  presumptions  only  prevail  when 
there  is  no  evidence  to  rebut  them,  we  have  before  seen  that 
very  slight  evidence  will  be  sufficient  for  that  purpose ;  and 
though  these  presumptions  arise  from  the  usual  construction 
of  a  deed,  or  other  written  instrument,  yet  evidence  will  be 
received  for  the  purpose  of  shewing  that  the  general  presump- 
tion is  not  applicable  in  the  particular  instance.(A)  There- 
fore where  .4?.  devised  400/.  to  his  wife,  and  made  her  executrix  Lake ?;.  Lake, 
without  disposing  of  the  surplus.  Lord  Chancellor  Hardwicke  •^^'* 

admitted  parol  evidence  to  shew  that  the  intention  of  the  testa- 
tor was,  that  his  wife  should  have  it ;  for  there  was  no  ambiguity 
in  the  will,  nor  was  it  to  alter  the  apparent  intention  of  the  tes- 
tator. By  law  she  was  entitled  to  the  surplus  as  executrix,  and 
therefore  the  evidence  was  admitted  only  to  rebut  the  rule  of 
Equity,  which,  in  such  cases,  divides  the  residue  amongst  the 
next  of  kin,  contrary  to  the  general  rule  of  law.  But  in  ^yown  (Lis.  Temp. 
v.  Sehoyn,  the  testator  having  expressly  devised  the  residue  tOy^Q*'"^  ' 
both  his  executors,  one  of  whom  owed  him  money  on  a  bond,  pa- 
rol evidence  that  the  testator  meant  to  extinguish  the  bond  debt 
was  rejected,  because  that  would  have  been  to  have  altered  the 
apparent  intent,  and  not  simply  to  have  rebutted  an^ equity. 

In  like  manner,  when  a  man   levies  a  fine,  and  no  deed  is 
made  to  declare  the  use,  the  law  presumes  that  he  did  it  only  to  Aitbam  v. 
secure  his  estate,  and  it  enures  to  his  own  use  ;  but  parol  evi-  ^'^' Qiit'cas" 

-  •  15.     Roe  XI. 

Pophani, 
(h)  Vide  ante,  p.  47,  n.  p. — Aw.  Ed.  Dougl.  2 

B  b 


IgQ  EXPLANATION  OF 

Chap.  II.  s.  5,  dence  has  been  admitted  to  rebut  this  presumption,  and  vest  the 
Ambiguities,  gg^^^^  j^  ^hg  conusee ;  though  by  the  Statute  of  Frauds  uses  to 

'___  third  persons  must  be  declared  by  writing,  signed  by  the  party. 

So  where  a  man  makes  his  will,  and  afterwards  marries  and  has 
a  child,  the  law  presuming  that  no  one  would,  in  such  circum- 
stances, wish  his  will  made  before  marriage  to  stand,  considers 
it  as  revoked,  or  more  correctly  speaking  (as  Lord  Kenyon  said 
(I)  5T.R.49.  in  Lancashire  v.  Lancashire{\)^)  it  presumes  a  tacit  intention, 
when  a  man  first  makes  his  will,  that  it  shall  not  stand  in  such 
(:)  Brady      case  ;  this  presumption,  it  has  been  held,(2)  may  be  rebutted  by 
i^Cubir''^    parol  evidence,  though  it  could  not  be  enforced  by  it.(3)     But 
Dougi.  31.      where  a  man,  after  having  made  a  will,  executes  deeds,  by  which 
Vide  post.      he  takes  a  new  estate,   parol  evidence  cannot  be  received  to, 
shew  that  the  testator  meant   his  will  to  continue,  because  the 
Lancashiie'^™  will  is  not  revoked  on  the  ground  of  intention,  but  by  the  Sta- 
Lancashire,     ^^^g  ^f  ^ills  could  never  operate  on  any  estate  acquired  after  it 

5  T.  Rep.  49. 

Goodtiiie        was  made. 

deni.Hoiford      r^]^^  amhisuitas  patens,  viz.  that  which  arises  on  the  face  of 

and  others  v.  ^  ^   .....  , 

Otway, '2H.  the  deed  or  will  itself,  is  (it  is  said)  never  helped  by  averment 
Ba*cwi''f  Eie-  ^^  parol  evidence  ;  for,  says  Lord  Bacon,  that  were  in  effect  to 
ments,  82.  make  that  pass  without  deed,  which  the  law  appoints  shall  not 
pass  but  by  deed.  It  is  necessary  for  us  to  attend  carefully  to 
this  reason,  to  enable  us  to  distinguish  between  cases  which  will 
otherwise  seem  to  clash  with  each  other  ;  for  though  it  is  ge- 
nerally true  that  in  cases  where  nothing  would  pass  by  parol 
no  evidence  of  an  expressed  intention  can  be  received  to  explain 
an  ambiguity  on  the  face  of  the  instrument,  and  thereby  to  make 
that  valid  which  of  itself  would  not  avail ;  yet  1  conceive  that 
in  other  cases,  both  species  of  ambiguity  are  open  to  explanation 
by  parol  evidence.  Thus,  if  in  a  case  where  no  written  con- 
tract is  required,  the  parties  execute  a  written  paper,  contain- 
ing merely  the  general  heads  or  minutes  of  an  agreement,  pa- 
rol evidence,  not  inconsistent  with  the  writing,  is  allowed,  for 
the  purpose  of  enabling  a  Court  of  Justice  to  put  a  construction 
upon  it.  This  occurs  daily  in  the  case  of  policies  of  insurance 
and  other  mercantile  contracts,  where  the  usage  of  a  particular 
(4)  Chaurand  trade  is  received  as  explanatory  of  th^  written  instrument.(4)  (i) 

•V.  Angerstein, 

Peak.  N.  P. 

Cas.  43.  ^j)  A.  usage   proved  may  give  a  peculiar  effect  and  me::ning  to  the  word   of  the 

contract  necessarily  referring  it.  JMuvruy  v.  Hatch,  0  J\LiSs.  Rep.iQS.    Bowery, 
Bon;  10  Bo  -26. 

In  an  action  :igainst  the  owners  of  a  vessi;!,  for  a  quantity  of  gold  and  silver  coin, 
taken  by  the  master  at  JVc'vis,  on  freight,  es  iilt- nee  of  a  custom  of  nie'  ch;ints  in  Con- 
necticut and  JVew  York,  ihattlie  ficight  of  money  received  by  the  master  is  his  per- 


\VRlTTRISr  INSTRUMENTS. 


187 

So  where  a  conveyance,  which  take  its  operation  from  the  Chap.  ir.  s.  5. 
Statute  of  Uses,  has  in  the  granting  part  all  the  necessary  for-  ^'"J^'gu't'es, 
malities  to  give  it  effect,  but  the  consideration  is  not  particu- 


larly expressed,  (the  deed  only  stating  divers  good  causes  and 
considerationsfl),)  the  grantee  may  prove  the  consideration  ac-(i)  Shep. 
tually  paid  ;  and,  in  like   manner,  if  money  be  the   only  consi-g^jQ^*^''     "■ 
deration    stated  on    the  deed,   it  may  be  shewn    that  a   mar- 
riage between  the  parties  also  formed  part  of  the  consideration; 


quisite,  atifl  that  h^  is  to  be  personally  liable  on  the  contract,  and  !iot  the  owners, 
was  held  to  be  admissible.  Hakey  v    Bro~cOH  et  a/.  3  Day's  Rep.  346. 

The  usaee  of  no  class  of  C:ti2'-ns  .-an  br  sustained  in  '>j)iiosition  to  the  established 
principl' s  oflaw.  JVIurray  v.  Hatch,  G  JMass.  Rep  465  Homer  \.  Dorr,  10  Do. 
26.  Schieffelinv.  Harvey,  Anth.  JV".  P.  57.  Bn-uienv.  Jackson,  C-  C.Penn.  April, 
1807,  M.  S.  Et  vide  Hewt/exr.  v.  Risk  et  al.  1  Dall.  Rep.  265. 

A  cornmercial  usage  will  he  considered  as  established  a  sufficient  length  of  time  to 
have  become  gen' rally  known,  and  to  warrant  a  presumption  that  contracts  are  made 
in  reference  to  it.  Smith  et  al.  v.  Wright,  1  Caines'  Rep.  43. 

Usage  of  trade  geni-rally  inadmissible  to  shew  that  a  transaction  was  not  usurious. 
Dunham  v.  Dey,  \5  Johns.  Rep.  40. 

Where  the  law  is  doubtful,  evidence  of  a  usage  to  explain  some  clause  in  a  policy, 
is  proper;  but  opinions  as  to  thn  construction  are  not  evidence.  Winthrop  v.  Umon 
Ins.  Co.  C.  C.  Penn.  April,  1807,  M.  S.  Rep. 

In  an  action  on  a  policv  of  insurance,  the  usage  of  trade  may  be  proved  by  parol 
evidence,  although  it  originated  in  a  written  law  or  usage  of  the  government  of  the 
country  where  it  prevails.  Livingston  et  al.  v.  Maryl.  Ins.  Co.  7  Crarich^s  Rep.  539, 

In  an  action  on  a  note  payable  "  in  cotton  yarn  at  the  wholesale  factory  |irice,"  it 
■was  held  that  evidence  of  the  usage  of  dealers  in  that  article,  was  admissible  to  shew 
that  a  certain  scale  of  prices  different  From  the  actual  wholesale  prices  was  intended. 
^very  et  al.  v.  Stewart  et  at.  2  Con.  Rep.  69, 

Where  no  records  of  the  Court  of  Sessions  could  be  found  appropriating  apart- 
ments as  a  jail,  immemorial  usage  was  received  as  sufficient  evidence  of  such  ap- 
propriation.  Clap  adm.  x.  Cofran,  7  Mass.  Rap.  98. 

A  stockholder  who  borrows  money  of  a  bank,  with  full  knowledge  of  a  usage  not 
to  permit  a  transfer  of  stock,  while  the  holder  is  indebted  to  the  bank,  is  bouid  by 
such  usage,  and  neither  he  nor  his  assignees  under  a  voluntary  assignment,  can 
maintain  an  action  against  the  bank,  for  refusing  to  permit  his  stock  to  be  trans- 
ferred. Morgan  et  al.  assignees  v.  The  Bank  of  JSTorth  America,  8  Serg.  oj  R, 
Rep.  73. 

Evidence  of  the  usage  of  sportsmen  is  admissible,  jyiorgan  v.  Richards,  1 
JBroitme^s  Rep.  171. 

Where  the  custom  of  a  country  or  a  particular  place  is  established,  it  may 
enter  into  the  body  of  a  contract,  without  being  inserted.  Stultz  v.  Dickey,  5  Binn. 
Sep.  287. 

Evidence  of  a  custom,  different  from  the  law,  in  a  particular  place  to  re-enter  for 
a  forfeiture  incurred  for  the  non-i)ayment  of  rent,  is  not  admissible.  Stoever  v. 
Le».  of  Whitman,  6  Binn.  Rep.  416. 

In  an  action  against  a  common  carrier  by  water,  to  recover  damages  for  the  loss 
of  the  plaintiff's  goods,  where  the  defence  is,  that  carriers  by  water  are,  by  the 
custom  of  the  country ,  answerable  for  such  losses  only,  as  are  occasioned  only  by  their 
own  negligence,  the  defendant  cannot  give  evidence  that  in  a  case  in  which  the 


188  EAPLANATIOX  OF 

Ctmp.  Ti.  s.  5.  for  this  stands  with  the  deed,  and  is  not  contradictory  ot  it.{l){k) 
"n^'ten't.'*^^'  ^^  where  a  conveyance  was  said  to  be  in  consideration  of  28/. 

»>_ a  parish,  on  a  question  of  settlement,   was  permitted  to  shew 

(i)lCo.irf).a.  that  30/.  was  "the  sum  actually  paid.(2J  On  the  contrary,  in 
(2)  Rext)  In- cases  within  the  Statute  of  Frauds,  which  requires  that  the  con- 
iiabitanis  oj     tract  shall  be  in  writina;,  if  the  writing  do  not  clearly  express 

Scainmonden,  .  °  i  .  >,  r  -r        • 

3T.  Rep. 474.  what  the  contract  is,  so  as  to  enable  a  Court  of  Justice  to  put  a 
Vide  post.  construction  upon  it,  without  the  aid  of  parol  testimony,  the 
rTp^'lni''  whole  is  a  nullity  ;  for  the  admission  of  parol  testimony  in  this 
I.  s,  1.  •  case,  to  support  a  contract  not  valid  in  itself,  would  be  attend- 
ed with  all  the  mischief  which  the  Statute  was  calculated  to 
prevent..  ■  • 

plaintiflTliad  can-iefl  the  property  of  others,  lie  had  refused  to  make  compensation 
lor  a  loss.  Dean  v.  Swoop,  2  Biini.  Rep.  72, 

But  a  usage  or  custom  varying  the  liability  of  common  carriers  by  water,  from, 
that  of  the  common  law,  may  he  proved.  Gordon  et  al.  v.  Little,  8  Serg.^  R.  Rep. 
533. 

Evidence  of  usage  or  custom,  fixing  the  construction  of  the  words  "inevitable 
fUingers  of  the  river '^  in  a  bill  of  lading  for  the  transportation  of  goods  by  inland 
navigation,  is  admissible,  ibid. 

Where  a  usage  is  so  established  as  to  leave  no  reasonable  doubt  of  its  existence,  it 
becomes  a  part  of  the  law,  and  thi-  Court  will  decide /jn  it,  without  requiring  it  to  be 
again  proved.   Consequa  v.  JVilling  et  al.  1  Peters''  Rep.  225. 

A  custom  of  merchants  is  a  matter  of  fact,  siid  must  be  proved  when  first  brought 
into  Court.  But  when  legal  decisions  are  made  on  it,  it  becomes  the  law  of  the 
land,  and  all  persons  and  Courts  are  to  noiice  without  stating  it,  JBraiich  v.  Burn- 
ley, I  Call's  Rep.  147. 

A  commercial  usage  generally  known,  is  evidence  of  the  intention  of  the  parties, 
in  the  transaction  to  which  that  custom  is  applicable.  Barber  v.  Brace  et  al..3  Con. 
Rep.  9. 

The  usages  of  a  bank,  at  which  the  parlies  to  a  promissory  note  are  accustomed 
to  transact  business,  respecting  the  time  of  clemand  and  notice  on  such  notes,  may 
be  proved,  not  as  forming  rules  for  the  decision  of  the  Court,  but  as  evidence  of  the 
assent  of  the  parties  to  such  usage,  and  of  their  waiving  their  legal  claims.  Blan- 
chard  v.  Hilliard,  11  Mass.  R<p.  85. 

Et  vide  T/ie  Hartford  Bank  v.  Stedham  et  al.  3  Con.  Rep  489. — Am.  Ed. 

{k)  In  a  note  to  Soule  v.  Soule  et  al.  5  Mass  Rep.  67,  Parker  J.  said  "  that  if 
the  parties  had  not  expressly  agreed  that  no  valuable  consideratiori  had  been  paid, 
it  would  have  been  difficult  to  get  over  the  express  averments  of  the  deed." 

In  the  case  of  Qnarles  et  al.  v.  Quarks,  4  Mass.  Rep.  680,  it  was  decided  that 
where  one  consideration  is  expressed  in  a  deed,  any  other  consideration  consistent 
vith  the  one  expressed,  may  he  averred  and  proved.  Fa  vide  Storer  v.  Batson,S 
Bo.  443. 

And  in  Wilkinson  v.  Scott,  17  Bo-  249,  "  that  a  man  is  estopped  by  his  deed  to 
deny  that  hf  granteil  oi-  that  he  had  a  good  title  to  the  estate  conveyed  ;  but  he  is 
not  bound  by  the  consideration  expressed  ;  because  that  is  known  to  be  arbitrary, 
and  is  frtquenlly  different  from  the  real  consideration  of  the  bargain.  It  is  so,  we 
think,  also  with  regard  to  the  acknowledgment  of  payment." 

In  the  case  of  Steele  v.  Adams,  1  Greenl.  Rep.  1,  it  was  held  that  if  one,  in  consi- 
deration of  a  sum  of  money,  bargain  and  sell  land,  and  in  the  deed  or  conveyance 


WRITTEN  INSTRUMENTS.  ^gC) 

In  the  case  of  a  will  where  the  devisee's  name  was  totally   ci.lLs.  5. 
omitted,  parol  evidence  to  shew  who  was  meant,  was  reject-     "'..'l'^"','"'*' 

ed  ;(1)  but  where  a  clerk  was  presented  to  a  church,  and  insti- 

tuted,  and  a  blank  left  in  the  bishop's  register  for  the  name  of  (i)  Btiiiis  and 
the  patron,  this  omission  was  permitted  to  be  supplied  by  P^™^^',',"'i^^j^Qp. 
testimony,(2)  for  the  presentation  might  have  been  by  parol,  and  ,„  rai,  Bui.  N. 
therefore  it  was  not  in  effect  to  make  that  pass  by  parol  which  .^  "^"^'^  '2^^ 
s.  c. ' 

•         111  -i-i  1  1.-U  -1   (")  nishop  ot 

ackno\vle<lp;e  the  receipt  of  the  purchase  money  when  in  truth  no  money  was  paid,  \t'   ,u  ,, 

yet  the  bargainor  is  estop])e(l  by  ihe  deed  to  say  to  the  coutrsi'v.  Lord  HelfieU'' 

So  an  account  that  the  sum  stated  in  the  condition  of  a  bond,  was  erroneously  in  j  W'ils.  '21S 
serted  for  another  sum,  is  inadmissible.      U.  States  v.  Thompson  et  al.  1   GalUs. 
Hep.  388. 

Where  a  deed  is  executed  to  more  persons  than  one,  without  designating  the 
proportions  they  are  to  hold,  the  considerations  paid  by  the  si'veral  grantees  can- 
not be  inquired  into  by  parol,  to  shew  that  they  are  entitled  to  different  proportions. 
Treadwellet  al.  v.  Bidkley  et  al.  4  Day's  Rep.  395. 

A  deed  from  a  parent  to  his  child,  in  consideration  of  love  and  affection,  is  pre- 
sumed to  be  an  advancement.     Hatch  et  al.  v.  Straight,  3  Con.  Rep.  31. 

If  a  deed,  after  mentioning  a  specific  consideration,  adds,  "  andfdr  other  conside- 
rations," it  seems  that  parol  evidence  is  admissible  to  shew  what  those  considera- 
tions were.  Benedict  v.  Lynch,  \  Joltns.  Ch.  Rep.  370. 

A  deed  m  Equity  mny  be  proved  to  have  been  made  in  consideration  of  marriage. 
though  not  so  expi-essed  on  its  face.     Eppes  et  al.  v.  Randolph,  2  CalPs  Rep.  125. 

So  likewise,  either  party  may  aver  and  prove  a  consideration  different  from  that 
stated  in  a  de;ed,  but  not  to  the  prejudice  of  a  bona  fide  purchaser  without  notice, 
Duval  v.  Bibb,  iHen.  &  M.  Rep.  113. 

Where  a  deed  is  made  in  consideration  "  of  natural  love  and  affectioiH''  and  "  of 
one  dollar,"  parol  proof  may  be  admitted  of  other  valuable  considerations.  Harvey 
•v.,  Jtlexander,  1  Randolph's  Rep.  219. 

In  Garret  v.  Steivart,  1  M' Cord's  Rep.  514,  it  is  said,  that  at  La-zu  you  cannot 
shew  by  parol  testimony  a  different  consideration  fron  that  expressed  in  the  deed, 
but  you  may  a  greater  or  less  of  the  same  character.     Sed  quere. 

Parol  evidence  is  admissible  in  Equity  to  shew  th  it  the  consideration  money  was 
not  paid  by  the  grantee.     Robertson's  exrs.  v.  Jilaclin,^  Hayiu.  Rep.  70. 

In  JVorth  Carolina,  where  the  deed  contains  an  acknowledgment  by  the  bar- 
gainor of  the  receipt  of  the  consideration  money,  parol  evidence  cannot  be  received 
to  shew  it  unpaid.     Brocket  v.  Foscue,  1  Rvffin.  Rep.  64. 

Where  a  consitleration  is  set  forth  in  a  written  contract,  evidence  to  shew  a  great 
er  or  different  consideration,  is  inadmissible.  Schermerhom  v.  lander  hey  den,  3 
Johns.  Rep.  139* 

In  Kip  adr.  v.  Deniston,  4  Do.  23,  the  Court  held,  that  where  two  trustees  had 
executed  a  conveyance  of  land,  in  which  was  contained  a  joint  acknowledgment  of  the 
receipt  of  the  consideration  money,  it  was  competent  for  one  of  the  trustees  to  shew 
that  the  vvliole  of  the  money  went  into  the  hands  of  the  other,  and  thus  exonerate 
himself  from  liability. 

In  Muigley  v.  Hauer,  7  Do.  341 ,  parol  evidence  of  a  consideration  of  a  different 
nature  from  that  expressed  in  a  deed  of  conveyance,  was  refused. 

In  Shephardv.  Little,  14  Do.  210,  it  was  decided,  that  where  the  consideration 
money  t'oi-  a  conveyance  was  expressed  therein  to  have  been  paid  by  the  grantee  or 
his  assignee,  parol  evidence  is  admissible  to  shew  that  it  had  not  been  paid.  Sed 
quere. 

Ill  Boiven  v.  Bell,  20  Do.  338,  parol  evidence  was  admitted  to  shew  that  the  ecu- 


190  EXPLAl^ATION  Of 

Ch.  II-  s.  5.  the  law  requires  to  be  done  by  writing,  as  would  have  been  the 
'I'lau'nt.'^^'  ^^^^  if  the  like  evidence  had  been  admitted  to  supply  the  blank 

1_    left  in  the  will.(/) 

But  Courts  of  Justice  are  in  all  cases  extremely  cautious  in 

12 Black. i'24'j. admitting  parol  evidence  to  supply  or  explain  a  written  instru- 

nient.(m)     It  never  ought  to  be  suffered  to  explain  away  or  con- 

PrestontJ,      tradict  an   explicit  agreement,  for  that  is  in  effect  to  vary  it ; 

Merceau,                                        r              o                                                                                j        ' 
Ibid.  : 

sidcration  money  expressed  in  a  deed  to  have  been  received  by  the  grantor,  had  not 
been  paid  by  lUc  gtaiitee. 

In  J)'ira?7//a7(f/,  in  the  casp  of  Onealev.  Lodge,  3  Har.  &  JM^Hen.  72ep.  433,  in 
an  action  ot  covenant  for  the  sale  ol  land,  the  Court  refused  to  instruct  the  jury  that 
a  deed  with  a  receipt  endorsed  thereon  was  conclusive  evidence  r)f  payment. 

But  in  the  case  of  Dixon  v.  Siviggett,  1  Har.  &  Johns.  Rep.  252,  in  an  action  of 
assumpsit  for  the  price  of  land,  the  Court  decided  that  parol  evidence  could  not  be 
given  to  prove  the  non-payment  of  the  consideration  money,  contrary  to  the  express 
acknov.  lodgment  on  the  face  of  the  deed. 

In  Penn  ylvania,  in  the  case  of  Will  v.  Franklin,  1  Binn.  Rep.  502,  Tilghman 
C.  J.  SKVs,  that  in  the  case  r,{ Fisher  r.  Smith,  J\loor''s  Rep.  569,  it  was  said  by  the 
\v|iole  Court  that  if  a  consideration  of  money  be  expressed  in  a  ileed  of  bargain  and 
sale,  there  shall  be  no  averment  or  evidence  to  the  contrary,  "  I  adopt  this  principle 
so  far  as  to  support  the  formal  part  of  a  conveyance  ;  to  go  farther  is  not  necessary." 
But  the  case  of  Oiieule  v.  Lodge,  is  cited  by  the  Court  with  approbation,  in  the  case 
Gi  Hamilton  V .  The  executors  ofJM'Gnire,  3  Serg.  &.  R.  Rep  355,  and  it  was  there 
decided  that  the  acknowleilgnient  of  the  payment  of  the  pwcliase  money  in  the 
body  of  a  deed,  and  a  receipt  endorsed,  are  not  conclusive  evidence  of  such  pay- 
ment, nor  a  bar  to  a  suit  for  the  same.  So  in  Jordan  v.  Cooper  et  at.  ibid.  564. ; 
and  in  Weigley's  adtns.  v.  fVeir,  7  Do.  309.  It  never  has  been  doubted  that  equity 
•was  a  part  of  the  law  in  Pennsylvania,  and  at  an  early  period  of  car  judicial  history 
it  was  decided,  in  the  case  of  Pollard  v.  Shaker,  1  Dall.  Rep.  110,  that  the  defen- 
dant night  file  a  plea  to  a  case,  founded  entirely  upon  equity.  And  although  the 
Courts  have  never  departed  altogi  ther  from  the  forms  of  law,  yet  in  many  cases 
thev  have  been  relaxed  in  order  to  reach  the  equity  of  the  case.  The  decisions, 
therefore,  which  have  taken  place  to  warrant  an  averment  to  contradict  the  terms 
of  a  written  instrument,  ane  not  innovations  upon  the  principles  of  law,  but  arise 
from  the  peculiar  adaptation  oi equity  and  law  in  the  same  tribunal. 

{I)  In  an  action  brought  for  not  giving  an  order  on according  to  an  award  of  re- 
ferees, it  was  ruled  that  paml  evidence  was  admissible  to  shew  who  was  the  person 
intended  by  them.  Ly7in  v.  Risberg,  2  Dall.  Rep.  180. 

So  to  prove  that  money  granted  by  a  parish,  was  for  a  different  purpose  than  ex- 
pressed in  the  parish  records.  Jiangs  v.  Sno~u>  et  al.  1  Mass.  Rep.  181. — Am.  Ed. 

{m)  "Where  there  is  no  ambiguity  in  articles  of  agreement,  and  no  doubt  can  be 
entertained  of  the  operation  of  the  instrument,  parol  evidence  of  the  intention  of  the 
parties  according  with  their  legal  operation, shall  not  be  received.  lAttley.  Hender- 
son et  id.  2  Yeates'  Rep.  295.  Et  vide  Stackpolev.  Arnold,  U  Mass.  Rep.  27.  Bar. 
ker  V.  Prejitiss,  6  Do.  430.  Murray  v.  Hatch,  ibid.  465.  Hunt  adm.  v.  Adams, 
ibid.  519,  and  7  Do.  518.  Richards  v.  Killam,  10  Do.  239. 

In  the  case  oi  Davenport  v.  Mason,  15  Mass.  Rep.  85,  it  was  decided  that  where 
a  deed  conveving  lands  contains  nothing  touching  the  consi  leration,or  the  payment 
of  the  purch.-ise  nion^y ;  although  the  law  will  presume  that  payment  was  made, 
yet  this  presumption  being  a  species  of  evidence,  relating  to  matter  of  fact,  and  riot 
arising  from  the  construction  of  the  deed,  may  be  repelled  by  oral  testimony. — Asr. 
Ed, 


WRITTEN  INSTRUMENTS.  j^g^ 

and  therefore  where  there  was  an  agreement  for  a  lease  of  twen-  ch.  ii.  s.  5. 
ty-one  years,  at  2,61.  per  annum,  the  lessor  was  not  permitted  to  ^''''^Jf,'}''^*' 
prove  that  the  lessee  was  also  to  pay  a  sum  of  2/.  124-  6d.  a  year  _____^, 
to  the  ground  landlord  ;  but  it  was  said,  in  this  case,  that  colla- 
teral matters,  about  which  the  agreement  was  silent,  as  that  the 
landlord  was  to  repair,  or  tlie  like,  might  be  supplied  by  parol 
evidence.     So  where  an  agreement  was  made  between  two  per-R^-x  v  Inha- 
sons  in  the  following  words  :  "  I,  J.  M.  do  hereby  agree  with  J.YA^\n^on, 
C.  to  serve  me  three  years  to  learn  the  business  of  a  carpenter  :  ST.Rep.  .^79. 
the  first  year  to  have  Is.  2d.  per  day,  the  second  year   Is.  6(/. 
per  day,  the  third  year  Is.  lOd.  per  day,  as  witness  my  hand  ;" 
which  agreement  was  signed  by  both   parties ;  it  was  held  to  be 
competent  to  a  parish,  when  J.  C's  settlement  came  in  question, 
to  prove  by  parol  that  at  the  time  of  signing  th&  agreement,  J.  C. 
agreed  to  give  J.  M.  three  guineas,  and  that  he  was  not  to  be, 
and  in  fact  never  was  employed  in  any  other  work  than  that  of 
a  carpenter  ;  for  this  evidence  did  not  contradict  the  agreement,  ii>icJ.  384.  Pei 
but  was  given  to  ascertain  a  fact  collateral  to  it,  in  order  to  ex-    '*"'''^"'^^» 
plain  the  intention  of  the  parties  ;  the  instrument  being  in  some 
measure  equivocal  whether  he  was  to  be  an  apprentice  or  a  ser- 
vant. 

Another  distinction  may  also  be  made  as  to  the  ambiguitas 
patens,  and  that  is  in  the  case  of  ancient  instruments  ;  for  if 
doubts  arise  as  to  the  construction  and  meaning  of  them,  the 
uniform  usage  which  has  prevailed  under  them  is  received  as 
evidence  of  the  original  intention  of  the  parties. (?i)  Lord  Coke, 
in  one  place,  says,  that  contemporanea  expositio  est  fortusima  in  2  Insf.  11 
lege,  but  Lt  is  plain  that  this  was  said  only  with  reference  to  the 
opinions  and  writings  of  contemporary  lawyers  on  an  ancient 
Statute,  and  not  as  to  the  usage  of  the  parties  ;  but  in  another 
place  speaking  of  claims  under  old  charters  before  Justices  in 
Eyre,  he  says,  "  If  the  words  v/ere  general,  and  a  continual  pos-nj],],  282 
session  pleaded  of  the  franchises  claimed  ;  or  if  the  claim  were 
by  old  and  obscure  words,  and  the  party,  in  pleading  them,  ex- 
pounding them  to  the  Court,  and  averring  continual  possession 
according  to  that  exposition,  the  entry  was  inquiratur  super  pos- 

(71)  Where  the  words  in  an  ancient  (lee(!  are  equivocal,  tlie  usage  of  the  parties  under 
it,  is  admissible  to  explain  them.  Living ston  v .  Ten  Jiroech,  16  Johns.  Hep.  li, 
■  TackHon  ex.  d.  White  v.  Cavy,  ibid.  302. 

Evidence  of  usage  is  inadmissible  to  explain  the  languaj^e  of  a  deed  not  ambiguous. 
CortelyoH  v.  Van  Brundt,  2  Johns.  Rep.  357. 

In  patents  of  great  antiquity,  where  the   description  of  the  land  is  vague,  and  the 
onstrtictinn  somewhat  doubtful,  the  acts  of  the  parties,  the  acts  ofgovtrnment,  and 
ol  thoBf  claiming  under  adjoining  patents,  are  entitled  to  gr<  at  weight  in  the  location 
nf  the  grant.  Jackson  ex.  d.  tichenck  v.  Wood,  13  Johns.  Hep.  3i5._AM.  Kn. 


ij93  EXPLAN^VnON  OF 

Ch.  11.  s.  5.  sessionein  tt  iisum,  which,  he  adds,  I  have  observed  in  divers  re- 
'paieht.'^'  cords  of  those  Eyres  according  to  the  old  rule  optimus  interpres 
I  rerum  usiis  ;  and  it  is  said  by  the  Court  in  Vaughan,  169,  that 

"  vk^here  the  penning  of  a  Statute  is  dubious,  long  usage  is  a  just 
medium  to  expound  it  by  ;  ior  jus  et  norma  loquendi  is  governed 
by  usage,  and  the  meaning  of  things  spoken  or  written,  must  be, 
as  it  hath  constantly  been  received  to  be,  by  common  accepta- 
tion." 

The  first  instance,  however,  which  1  find  of  this  doctrine  hav- 
ing been  acted  upon,  is  in  the  case  of  the  Attorney  General  v. 
(O-'Atk.      Parker,{\)  where  the  right  of  election  being  given  by  a  deed 
founding  a  charity,  to  parishioners  and  inhabitants.  Lord  Hard- 
wicKE  admitted  evidence   of  the  usage  for  all  housekeepers  to 
vote,  as  explanatory  of  the  words  parishioners  and  inhabitants. 
The  same  kind  of  evidence  has  been   received  in  many  subse- 
(2)Blankiey  quent  cases(2)  depending  on  the  construction  of  charters,  and 
3T.ll"p.*2r9  iri  the  last  which  occurred,(3)  the  usage  was  much  relied  on  by 
G»peTy  Hand- the  Court  in  forming  their  decision.     In  that  case,  Lord  Kenyon 
Rexv.' Bell-  said,  that  both  private  deeds  and  the  King^s  charters  might  be 
'■ 't*t?'     r  n  expounded  by  the  usage  which  had  taken  place  under  them;  and 
EesT'.  Vaiio,  accordingly  we  find  that  on  a  question  whether  a  covenant  for 
Cowp.  2*8.     renewal  in  a  lease  should  be  deemed  to  be  a  covenant  for  per- 
(3)Wliitnaii   petual  renewal,  or  only  for  one  other  lease,(4)  evidence  of  se- 
li'ur^i     Tti'c  veral  former  renewals  was  received  as  the   construction  which 

01  .  Kep  388. 

Vi<ie  also  Ri  X  the  parties  themselves  had  put  on  the   preceding  leases,  and  of 
4  East °3'27'    their  intention  at  the  time  of  granting  that  in   ques^tion.     The 
doctrine  of  this  latter  case,  however,  has  been  since  questioned; 
Booiir*  *^^     and  on  a  similar  case(5)  coming  before  Lord  Alvax^zy,  when 
Cowp.  819.     Master  of  the  Rolls,  his   Lordship  said  he   strongly  protested 
(5)  Baynhsm  against  Construing  legal  instruments  by  the  equivocal  act  of  the 
^'.•^"^'^.^^°^' parties  and  their  understanding:  and  the  late  Master  of  the 
jun.  295.         Rolls,  (:^ir  William  Grant)  in  a  still  later  case  of  the  same  de 
-g.  ,-        ^.  scription,  concurred  with  him  in  that  opinion.(6) 
Foley,  6  Ves      In  another  case, (7)  which  came  before  Lord  Eldon,  as  Chan 
jun.232.         cellor,   his  Lordship   said,  "he  should   state   his   opinion    with 
(7)lggviMon    great  reserve.     It  was,  that  in  no  case  would  it  be  competent 
i mi.  325     '^^  t^  bring  upon  the  record  the  fact,  with  reference  to  the  former 
leases,  as  explaining  the   contract  contained  in  the  last  lease;" 
but  as  such  evidence  had  been  stated  and  relied  on  in  the  case 
of  Cooke   V.   Booth,   his  Lordship  retained  the  bill  for  twelve 
months,  with   liberty  for  the   plaintiff"  to  bring  an  action  on  the 
covenant.     An  action  was  accordingly  brought  in  the  Court  of 
;8)  Same  par- King's  Bench,(8)  and  the  plaintiff' averred   in  his  declarition, 
lies, 7  Last,    that  the  covenants  in   the   deed  "corresponded  with  those  ex- 
pressed in  various  other  leases  before  then  successively  made 


WRITTEN  INSTRUMENTS. 


193 


and  executed  on  renewals  from  time  to  time  granted  at  the  like  Ciiap.  ii.  s.  5. 
yearly  rent,  and  in  consideration  of  the  like  sum  paid  in  nature  "pafe'n'tr*' 
of  a  fine  upon  any  such  renetval.''''  The  construction  of  the  deed,  _ 

as  affected  by  the  former  deeds,  was  argued  at  considerable 
length,  on  a  demurrer  to  the  defendant's  plea.  On  the  words 
of  the  covenant,  the  Court  were  of  opinion  there  was  no  cove- 
nant for  perpetual  renewal.  On  the  effect  of  the  averment. 
Lord  Ellenborough,  in  delivering  the  opinion  of  the  Court, 
said,  that  though  the  case  of  Cooke  v.  Booth  was  very  analogous 
to  the  present,  yet  there  was  a  distinction  between  them.  In 
that  case  the  series  of  successive  renewals,  from  the  first  down- 
wards, was  uniform  and  unbroken;  whereas,  in  the  present 
case,  it  was  only  alleged  that  the  covenant  corresponded  with 
those  in  various  other  leases  successively  made ;  which  allega- 
tion as  to  various  other  leases  might  be  true,  although  there 
should  have  been  several  instances  to  the  contrary.  His  Lord- 
ship added,  that  the  fact  stated  respecting  the  successive  re- 
newals being  so  materially  different,  this  case  could  not  be  gov- 
erned by  Cooke  v.  Booth,  even  "  if  it  were  competent  in  any 
form  of  action  to  bring  upon  the  record  the  fact  with  reference 
to  former  leases,  as  explaining  the  contract  contained  in  the 
last  lease,"  upon  which  point  very  great  and  serious  doubts  had 
been  entertained,  and  which  it  was  not  necessary  then  to  decide. 
A  writ  of  error  was  afterwards  brought  and  the  case  argued  in  2  Bos.  &  Pui, 
the  Exchequer  Chamber,  when  the  judgment  of  the  King's  Bench  ^*  ^^-  ^'^'^ 
was  affirmed,  and  Lord  C.  J.  Mansfield,  in  delivering  the  opi- 
nion of  the  Court,  said,  that  the  renewals  which  had  taken  place 
could  not  be  used  by  way  of  argument  on  the  occasion.  It  was 
true  that  similar  renewals  were  allowed  to  operate  upon  the 
judgment  of  the  Court  in  Cooke  v.  Booth,  but  that  was  the  first 
time  that  the  acts  of  parties  to  a  deed  were  ever  made  use  of  in 
a  Court  of  Law  to  assist  the  construction  of  a  deed.  Suppose 
the  original  lessor  to  have  declared  in  the  presence  of  fifty  wit- 
nesses that  he  intended  to  bind  himself  by  the  lease  to  a  perpe- 
tual renewal,  his  declaration  could  not  have  been  allowed  to  alter 
the  construction  of  the  lease  itself.  If  so,  why  should  the  sub- 
sequent renewals,  which  are  not  evidence  either  so  strong  or  so 
unequivocal  as  the  declaration  of  the  lessor,  be  allowed  to  alter 
the  construction  ? 

Cases  o{ fraud,  do  not,  as  was  observed  before,  fall  within  the 
principle  on  which  parol  evidence  is  rejected  ;(o)  and  therefore 

(0)  The  Circuit  Court  of  the  U-  States,  notwithstanding  the  restrictive  clause  in 
the  Judiciary  Act  of  1789,  c.  20.  s.  11,  has  jurisiliction  in  a  suit  in  Equity,  brought 
by  a  judgment  creditor  against,  his  debtor  and  otherS;  (they  being  citizens  of  other 

Co 


igij  EXPLANATION  he. 

Chap.  II.  s.  5.  parol  evidence  maybe  produced  to  shew  that  an  instrumeut 
fniuduiVnt.    ^^^^  Stated  to  the  maker  of  it  to  be  a  different  thing  from  what 

»i it  really  was  ;  as  where  a  deed  is  falsely  read  to  a  grantor.     So 

Doe  dem.       where  a  testator  having  made  one  will,  afterwards  made  another. 
Snmilr.  AU    ^j^g   provisions  of  which  were  widely  different,   parol  evidence 

len,  8T.  Rep.  '^  ,         ■  r    t         " 

li7.  that  the  testator,  at  the  timeoi  the  execution  of  the  second  will, 

inquired  whether  it  was  the  same  as  the  former,  and  was  an- 
swered in  the  affirmative,  was  held  to  be  admissible,  for  this 
did  not  go  to  contradict  that  which  was  allowed  to  be  a  valid 
instrument,  but  to  set  it  aside  altogether,  as  being  obtained  by 
fraud  and  imposition.(;j) 

|','|P-  q""'^'*'  So,  though  in  general  an  averment  shall  not  be  allowed  against 
a  deed  that  there  was  no  consideration  given,  when  there  is  an 
express  consideration  stated  upon  the  deed,  yet  where  a  deed 

Fiimcrv.       ^vas  obtained  under  very  suspicious  circumstances,  and  appeared 

Pari.  Cas.  70.  on  the  face  of  it  to  be  made  in  consideration  ot  a  sum  of  money 
greatly  inadequate  to  the  value  of  the  estate  conveyed,  and  also 
of  love  and  aflfection,  an  issue  was  directed  to  try  whether  lore 
and  affection  did  in  fact  form  any  part  of  the  consideration,  and 
being  found  in  the  negative,  the  deed  was  set  aside :  while,  on 

Ciarkson  v.    the  other  hand,  where  a  deed  was  made  to  two  persons,  one  of 

WiuJ 203.  ^vhom  was  not  related  in  blood  to  the  grantor,  and  a  money  con- 
sideration was  expressed  on  the  face  of  the  deed,  the  Master  oi 
the  Rolls  would  not  permit  the  grantors  to  show  that  love  and 
affection  also  formed  part  of  the  consideration  ;  and  Lord  Mac- 

VideB.  N.  P.  CLESFIELD  confirmed  the  decree.  If  a  deed  be  founded  on  an 
'"''  usurious  or  other  illegal   consideration,  this  may  be  shewn,  not- 

withstanding the  deed  on  the  face  of  it  is  perfectly  fair  and  legal. (5) 

Statics')  to  set  aside  conveyances  made  \n  fraud  of  crj^ditors,  although- the  ground  of 
the  judgment  was  a  negotiable  c/iose  inaction,  on  which,  before  judgment,  a  suit 
could  not  liMve  been  maintained  in  such  Court.  Beu7i  v.  Smith  et  al.  2  JVTason^s  Rep. 
252.— Am.  Ei). 

{p)  Parol  evidence  is  admissible  to  contradict  the  return  of  an  officer,  which  lias 
been  obtained  by  fraud.   Commomvealth  v.  .Bullard,9  JUass.  Rep.  270. 

So  to  prove  ihut  tViuid  has  been  practised  upon  tli»f  party  to  be  chaiged  by  a  con» 
tract,  See  or  some  illegality  in  the  transaction.  Stackpole  v.  A^'TioUl,  11  JUass.  Rep. 
9,7.  Barker  v.  Prentiss,  6  Tio.  430.  Stover  v.  Logan  et  al.  9  Do.  55.  JVardf. 
Wins/dp,  1'2  Do.  iSl. 

Q?«'r5,  Whether  in  an  action  of  fjectment,  evidence  is  admissible  that  a  patent 
was  obtained  by  fraud.  WiiJieriiiton  v.  jM'Donald,  I  Hen.  &  JMunf.  306. 

A  patent  obtained  h\  misrepresentation,  deceit,  or  forgery,  or  through  ignorance 
of  the  facts  by  the  officers  of  the  land  office,  does  not  legalise  an  unauthorised  sur- 
vey. The  adverse  party  may  prove  the  fraud  to  obtain  the  patent.  Bond  et  aly. 
Seabold,  6  Serg.  ^  Ji.  Rep.  137.  Kt  vide  Gonzaluset  al.  v.  Hoover  etal.  ibid.  118. 

Whenever  parol  or  extrinsic  evidence  would  be  received  to  reacA  a  fraud  in 
Ckoncery,  it  will  be  received  in  Pennsylvania.  Hill  v.  Ely,  5  Serg.  &  R.  Rep- 
365.— Am.  Ep. 

.(9)  Vide  ante,  page  188,  n.  A;. 


CHAP.  iir. 


OF   PAROL  EVIDENCE. 

Having  had  occasion  in  the  preceding  chapters,  to  mention 
in  what  cases  parol  evidence  was  admissible  ;  the  principal  ob- 
ject of  our  present  inquiry  will  be,  what  persons  are  not  per- 
mitted to  give  evidence,  or  privileged  from  examination,  when 
unwilling  to  be  called  ;  to  which  I  shall  add,  a  few  observations 
on  the  examination  of  witne3ses.(a) 

SECTION  I. 

Of  persons  incompetent  to  give  evidence,  by  reason  of  the  imbe- 
cility of  their  understandings. 

All  persons  who  are  examined  as  witnesses,  must  be  fully  Ch.  III.  s,  i. 
possessed  of  their  understanding,  that  is,  such  an  understanding   ^^''"''*'  *"'• 
as  enables  them  to  retain  in  memory  the  events  of  which  they  have   """——"• 

Rill    "V    P 

been  witnesses,  and  gives  them  a  knowledge  of  right  or  wrong.  ^293^" 
Idiots  and  lunatics,  while  under  the  influence  of  their  malady,  not 
possessing  this  share  of  understanding,  are  excluded  ;(b)  as  are 
also  children  of  so  early  an  age,  as  to  be  incapable  of  any  sense  of  Co.  Litt.  6,  b, 
truth.    As  a  general  rule,  fourteen  is  said  to  be  the  age  at  which  g^  \^j^ 

(a)  The  rule  of  the  text  is  recognised  in  the  following  cases,  Livingston  v.  Kier- 
ated  et  al.  10  Johns.  Rep.  362.  Hartford  v.  Palmer,  16  Do.  143.  Swifes  Syst.  of 
Evid.  iG. 

Where  insanity  at  a  particular  time  is  attempted  to  be  proved,  evidence  of  insa- 
nity immediately  before  or  after  the  time  will  be  received  ;  but  such  evidence  long 
after  the  time  would  not  be  admissible.  Dickinson  v.  Barber,  9  Mass.  Rep  225. 

In  Pennsylvania,  a  negro  slave  cannot  be  a  witness.  Respiiblica  v.  Bob,  4  DalL 
Rep.  145.  w. 

In  JVew  York,  by  Stat.  ses.  36.  c.  88.  s.  19.  2  R.  L.  207,  no  slave  can  be  a  witness, 
except  in  criminal  casts,  for  or  against  a  slave. 

But  a  free  black  man  is  a  witness  to  provn  facts  which  may  have  happened  while 
he  was  a  slave.  Gurnee  v.  Dessies,  1  Johns.  Rep.  508. 

A'  slave  manumitted  by  an  infant,  although  voidable,  being  in  the  mean  time 
Talio,  the  slave  is  a  competent  witness.  The  exrs.  of  Rogers  v.  Berry,  10  Johns. 
Sep.  132.  Am.  Ed. 

(6)  The  lawfulness  or  unlawfulness  of  the  mode  by  which  evidence  is  obtained, 
does  not  afF.  ct  its  admissibility  in  a  Court  of  Luw.  U.  Slates  v.  La  Jeune  Eugenie, 
2  Maion's  Rep,  409.— -Am.  Ed. 


j^QQ  WITNESSES. 

Ch.  n[.  s.  1.  a  child  may  be  a  witness  ;  for  then  all  are  supposed  to  have  at- 
Children.    ^^;„gj  ^  competent  knowledge  of  right  and  wrong  ;  but  short  of 

■"~~~~~  that  age,  the  receipt  or  rejection  of  his  testimony  must,  in  every 
case,  depend  upon  the  sense  of  religion,  and  apparent  under- 
standing of  the  child,  when  examined  previous  to  the  oath  being 
administered  to  him*(c)  A  person,  deaf  and  dumb,  if  of  sense 
to  have  intelligence  conveyed  to  him,  maybe  a  witness,  and  give 

Ration's  Cfls.  j^jg  evidence  by  signs,  through  the  medium  of  an  interpreter.frf} 

Leauh  Gro.  j       o  a 

Cas  455. — 

»  In  tlie  case  of  the  ICmff  v.  Travers,  2  Stra.  70,  tlie  i)risoner  was  indicted  for  n 
rape  on  a  child  of  six  years  old,  and  Lord  C.  B.  Gilbert  refused  to  admit  the  child 
as  a  witness,  wherefore  the  prisoner  was  acquitted.  He  was  then  indicted  for  an 
assault,  with  an  intent  to  ravish,  and  the  indictment  coming  on  to  be  tried  before 
RatmoM)  C.  J.  at  the  next  assizes  but  one,  the  same  objection  was  taken  by  Comyxs 
and  DaRSELt,,  Serjeants,  that  the  girl  being  then  but  seven  years  of  age,  cowld  not 
be  a  witness.  The  counsel  for  the  prosecution  endeavoured  to  distinguish  the  case 
of  a  misdemeanotir  from  that  of  a  capital  offence;  but  Raymond  C  J.  held,  that 
there  was  no  difference  between  offences  capital  and  lesser  offences,  in  this  respect  j 
and  that  a  person  who  could  not  be  a  witness  in  one  case,  could  not  in  the  other. 
He  said,  that  the  reason  why  the  law  prohibited  the  evidence  of  a  child  so  young 
was,  because  the  child  could  not  be  presumed  to  distinguish  between  right  and 
wronn- :  no  person  had  ever  been  admitted  under  the  age  of  nine  years,  and  very 
s'jldom  under  ten.  He  then  mentioned  two  cases  at  the  Old  Bailey,  and  rejecting 
die  evidence  of  the  child,  the  defendant  was  acquitted. 

But  in  Brazier's  case,  12th  ^pril,  1779,  (Hul.jY.P.  293.  Leach.  Cro.  Cas. 
237,)  the  question  was  again  considered  by  all  the  Judges,  and  they  held,  that  a 
child  of  any  age  might  be  examined  on  an  indictment  for  an  assault  on  her  with  in- 
tent to  ravish,  if  she  appeared  to  be  acquainted  with  the  nature  and  obligation  of  at; 
oath. 

See  the  several  cases  collected  in  1  East's  Cro.  iaw,  441. 

(c)  If  a  witness  is  of  the  age  of  fourteen  years,  the  Court  are  not  obliged  to  inter- 
rogate her  as  to  her  knowledge  of  the  nature  and  obli;;ation  of  an  oath,  unless  some 
fact  should  be  proved  aliunde,  which  would  incapacitate  her  as  a  witness.  Den  v. 
Va>icleve,2  South.  Rep.  589. 

A  person  above  fourteen  years,  is  presumed  to  be  doU  capax.  Slate  v.  Dohertij, 
2  Overtoils  Jlcp.  80. — Am.  Ed. 

((/)  A  person  deaf  and  dumb  from  his  niitivily,  having  sufficient  capacity,  may 
execute  a  deed.  Brown  v.  Brotun,  3  Con.  Rep.  299. 

So  one  deaf  and  dumb  may  be  convicted  of  larceny.  Common-wealth  v.  /////,  14 
Mass.  Rep.  207.~Am.  Ed. 


WITNESSES 


SECTION  II. 


197 


Of  persons  incompetent,  by  reason  of  the  infamy  of  their  cha- 
racter. 

In  the  next  place,  the  moral  character  of  a  witness  is  to  be  Ch.  ur.  s.  l'. 
considered.  When  stigmatised  by  a  conviction  of  certain  crimes,  j^„j  credible. 
his  evidence  is  wholly  inadmissible,  and  he  becomes  what  the  ..     ,   . 

law  calls  an   incompetent  witness  ;*   but  other  crimes,  though 
much  detracting  from  the  character  and  credibility  of  a  man,  do 
not  render  him  so  totally  infamous  as  to  prevent  him  from  being 
heard  in  a  Court  of  Justice  :  nevertheless,  the  parol  testimony 
of  witnesses  upon  oath,  as  to  his  general  character,  is  received 
as  evidence,  to  be  left  to  a  jury,  whether  such  a  man  is  a  person 
on  whose  testftnony  reliance  can  be  placed.     The  viva  voce  evi-  4  st.  Tr.  693, 
dence  to  destroy  the   credit  of  a  witness,  must  be  that  of  P^r- ?!''t]^'. T*^" 
sons  who  have  known  his  general  character,  and  who  take  upon  p.  11. 
themselves  to  swear  from  such  knowledge,  that  they  would  not^g"g*^" 
believe  him  upon  his  oath.     This  general  evidence  is  all  they 
are  allowed  to  give  against  him,  for  no  man  can  be  supposed 
prepared  to  give  a  history  of  all  the  transactions  of  his  life,  iu 
answer  to  a  charge  suddenly  made  upon  him  in  a  Court  of  Jus- 
tice ;  but  the  party,  whose  interest  it  is  to  support  his  character, 
may  call  upon  the  witness  against  him  to  declare  the  grounds 
on  which  their  opinion  of  him  is  founded. (e)     Though  only  ge- 
neral evidence  can  be  given  as  to  his  general  character,  yet  de- 

•  No  two  words  have  been  more  frequently  confounded  together,  and  consequently 
less  understood,  than  those  of  competent  and  credible.  A  witness  is  properly  said 
to  be  competent,  whenever  he  can  be  at  all  examined  before  a  Court  of  Justice,  and 
this  competency  is  a  question  of  tow  to  be  determined  by  the  Judge,  previous  to  liis 
giving  evidence  in  the  cause.  If  the  law  permits  him  to  be  examined,  his  credibility 
forms  the  most  important  part  of  the  consider.Uion  of  ajurij,n\\<\  they  must  decide 
CD  this  according  to  the  opposing  or  corroborating  circumstances  of  the  case.  The 
expression  of  "credible  witness"  is  often  used  in  Acts  of  Parliament,  but  this  means 
nothing  more  than  that  the  magistrates  shall  judge  as  the  jury  would  do  oi\\\%  credi- 
bility, but  leaves  the  question  of  his  competency  as  before.  1  Burr.  417. 

(e)  Where  a  witness  said  he  would  swear  to  any  thing  for  six  pence,  this  declara- 
tion will  go  only  to  his  credit.  J^eiuhalv.  Wadhams,  I  Root's  Rep.  504. 

The  credit  of  a  witness  may  be  impeached,  by  shewing  that  at  the  time  the  facts 
sworn  to  took  place  he  was  intoxicated,  but  the  intoxication  must  be  proverl  by  di- 
rect evidence,  or  by  the  acts  and  conduct  of  the  witness.  Tuttle  v.  Russell,  2  Day''s 
Rep.  201. 

In  the  case  of  The  State  v.  Stallinsrs  et  al.  2  Hayw.  Rep.  SOO,  after  argument,  the 


^gg  '  WITNESSES. 

Ch.iii.  s.  2,  clarations  made  by  him  on  the  same   subject,  contrary  to  what 
Gei.Kiai     he  swears  at  the  trial,  whether  on  his  original  or  cross  examina- 

^^ '    lion,  may  be  given  in  evidence  to  impeach  his  credit;  and  even 

Wi  <ht<Uiu  ^f^^*"  ^'i^  death  of  the  subscribing  witness,  a  confession  made  by 
Clyiiierr.  him  on  his  death-bed,  that  the  will  which  he  attested  was  a  for- 
I?um  1244.  g^O'  ^"^y  ^^  given  in  evidence  to  rebut  the  presumption  arising 
Harwdtli  V.    from  proof  of  liis  hand  writing.(/) 

TaiHHnn  Sn.  ^^  should  here  be  understood,  that  it  is  the  party  against 
As.  1789  whom  a  witness  is  called  only,  that  is  permitted  to  attack  his 
DP  fij'^i,^!  ]  character  hy  general  evidence;  for  if  the  same  privilege  were  al- 
1789.  per  lowed  to  the  party  calling  him,  the  consequence  would  be,  that 
low,  vidi-  such  party  might  destroy  the  credit  of  a  witness  if  he  spoke 
SijI.  n.  p.  against  his  wishes,  and  make  him  a  good  witness  if  his  evidence 
was  favourable,  at  the  same  time  that  he  had  the  means  of  de- 
.,.,  stroying  his  credit  in  his  hands.     But  if  a  witness  prove  facts  in 

See  also  Al-   a  cause  which  make  against  the  party  who  calls  him,  that  party, 
&bsnn*^2       ^^  ^^^^'  ^^  ^^^  other,  may  call  other  witnesses  to  contradict  him 
Campb.  555,   as  to  those  facts ;  for  such  facts  are  evidence  in  the  cause,  and 
the  other  witnesses  are  not  called  directly  to  discredit  the  first, 
but  the  impeachment  of  his  credit  is  incidental,  and  consequen- 
tial only.(g-) 

Court  decided  that  you  are  not  confined  to  the  question  whether  a  witness  be  a  man 
of  veracity,  or  of  veracity  when  upon  oath,  but  that  yoo  may  inquire  whether  he  be 
a  man  of  bad  moral  character. 

Evidence  of  general  character  For  truth,  derived  from  the  common  report  of  the 
neighbourhood,  is  admissible.  Kimmely.  Kimmel,  3  Serg.  SJ  R.  Rep.  336. 

Testimony  to  impeach  the  credit  of  a  witness,  by  shewing  that  she  either  was,  cr 
had  been  a  common  prostitute,  is  inadmissible.  Jackson  ex.  d.  Boyd  y.  Lewis,  \5 
Johns.  Rt-p  504. 

A  contrary  decision  was  made  in  JHassachusetts.  Commonioeallhv.  JMurphy, 
14  Mass.  Hep.  387. 

General  character  may  be  given  in  evidence  in  behalf  of  one  on  trial  for  a  capital 
offence.    Commonwealth  v.  Hardy,  2  Mass.  Rep.  317. — Am.  Ed. 

>  (/)  Where  thecredit  of  a  witness  isimpeached, the  recordoflhe  Supreme  Court  of 

a  suit  between  other  parties,  is  evidence  as  introductory,  to  prove  that  a  witness  who 
was  examined  on  the  trial  of  tliat  suit,  gave  the  same  evidence  he  had  given  in  this. 
Foster  v.  Shaw,  7  Serg.  £i?  R.  Rep.  156. 

Evidence  may  be  given  of  the  declarationsof  a  witness  to  contradict  what  he  stated 
in  his  examination,  or  to  shew  that  he  did  not  tell  the  -u/hole  truth.  Stahle  v.  Spohn, 
8  Do.  317.  Tucker  v.  Welch,  17  Mass.  Rep.  160.  The  State  v.  Alexander  et  al. 
2  Rep.  Const.  Ct.  S.  Car.  171. 

Whf;re  witnesses  are  called  to  prove  declarations  made  by  a  witness,  inconsistent 
with  what  he  deposes  on  the  trial,  it  is  perfectly  regular  in  reply  to  shew  othei  de- 
clarations made  by  the  same  witness  in  affirmance  of  what  he  has  then  sworn,  and 
that  he  is  still  consistent  with  himself.  Johnson  v,  Patterson,  2  Hawks'  Rep.  183. — 
Am.  Ed. 

{g)  Eret^  persoD,  by  the  principles  of  the  commoa  law,  not  itUer-etted,  and  not 


WITNESSES.  j^yg 

But  to  return  to  those  offences,  a  conviction  of  which  totally  ch.  ill.  s.  2. 
excludes  the  testimony  of  a  witness,  and  renders  him  incompe-  ♦^''"^''^t'on  of 
tent.  ____ll_ 

Treason  or  felony,  and  every  species  of  what  is  called  in  our  p  ,„inck  dem 
books  the  crimen  falsi,  such  as  perjury,  conspiracy  to  accuse  an-  viatkinfier  t- 
other  of  a  crime,  barratry,  attaint  of  false  verdict,  bribing  a  wit-  2  Wils.  218 
ness  to  absent  himself  from  giving  evidence,  &c.  prevent  a  man, 
when  convicted   of  them,  from  being  examined  in  a  Court  of 
Justice.(A)      According  to  the  ancient   notion,   every   offence 

of  infamous  character,  may  be  a  corapetent  witness.  Per  Tilghman  C.  J.  in  Bar- 
ing V.  Sliippen,  2  Binn.  Rep.  165. 

The  party  who  introduces  a  witness  cannot  afterwards  invalidate  his  testimony  on 
the  ground  of  interest.  Denn  ex.  d.  Fanmr  v.  Hamilton,  Tayl  Rep.  14. 

A  party  cannot  impeach  the  credibility  of  his  own  witnesses.  Sarurey  v.  JMurrell 
et  al.  2  Hay-w.  Rep.  397. 

If  a  witness  testify  against  the  party  by  whom  he  is  called,  it  is  competent  for  that 
parly  to  prove  that  the  witness  was  mistaken  in  any  part  of  his  evidence,  by  calling 
other  witnesses  to  rectify  the  mistake,  or  to  prove  that  on  other  occasions  he  had 
related  the  story  in  a  different  manner.  J)e  Lisle  v.  Priestman,  I  Brorinie^s  Rep. 
176.    (Affirmed  in  the  Supreme  Court  on  error,  ibid,  n.) 

Et  vide  in  J^/'ew  York,  Steinbach  v.  Col.  Ins.  Co.  2  Caines.  Rep.  120. 

In  JMassachusetts,  vide  WebHer  v   Lee,  5  JMass.  Rep.  334. 

In  JWtrth  Carolina,  in  the  case  of  The  State  v.  JK'hrris,  1  Ilayxv.  Rep.  429,  it  was 
decided  that  the  Attorney  General  might  discredit  liis  own  wiint-ss. 

But  in  civil  cases  neither  party  can  do  so.  ibid.  S.  P-  Saxurey  v.  JSlurreU  et  al. 
2  Do.  39".  Et  vide  Denn  ex.  d.  Farrar  v.  Hamilton,  Tayl.  Rep.  11. 

Where  a  party  calls  a  witness,  who  is  contradicted  by  another  witness  of  his  own, 
he  cannot  call  his  first  witness  to  disprove  what  the  second  has  said.  Rapp  v.  Le 
Blanc  et  al.  1  Dall.  Rtp  S3. 

If  a  witness,  in  a  deposition  on  cross  interrogatories,  state  as  facts,  circumstances 
not  pertinent  to  the  cause,  what  he  has  said  or  sworn  in  another  cause,  where  those 
circumstances  were  pertinent,  cannot  be  read  to  discredit  him  ;  aliter  if  he  has,  on 
a  former  occasion,  said  or  swor'n  differently  from  what  he  now  deposes,  in  a  matter 
relative  to  the  cause  in  which  his  deposition  is  read.  iMmalire  v.  Caze,  C.  C.  April, 
1808,  M.  S.  Rep. 

The  plaintiff  cannot  put  a  question  to  a  witness  called  by  him  to  rebut  the  defend- 
ant's testimony,  which  is  not  intended  to  contradict  or  discredit  the  defendant's 
witnesses,  and  which  question  is  not  rendered  necessary  by  any  evidence  given  by 
the  defendant.  Evans  v.  Eaton,  I  Peiers''  Rep.  338. — Am.  Ed. 

(/()  A  conviction  upon  an  indictment  for  an  assault  and  battery,  with  intent  to  kill, 
in  consequence  of  which  the  person  indicted  wms  sentenced  to  imprisonment,  does  not 
make  him  an  incompetent  witness.  U.  States  v.  Brackens,  C.  C.  Oct.  1811. 
M.  S.  Rep.  * 

A  pardoned  convict  was  offered  as  a  witness  for  the  people,  on  the  trial  of  an  in- 
dictment, and  the  pardon  contained  a  proviso  that  withing  therein  shall  be  construed 
so  as  to  relieve  the  said  prrsoji  of  and  from  the  legal  disabilities  to  him  from  the  con- 
viction, sentence,  and  imprisonment,  other  than  the  said  imprisonment ;  it  was  held 
that  the  priviso  being  incongi  uous  and  repugnant  to  the  pardon,  ought  to  be  re- 
jected, and  the  witness  was  coinpct'  - 1.  The  Pfople  v.  Pease,  3  Johns.  Cas.  333. 
El  vide  In  the  natter  of  Denning,  10  Johns.  Rep,  232. 


200  WITNESSES. 

Ch.  III.  s.  '2.  which  subjected  a  man  to  the  pillorj,  and  tor  which  he  was  sen- 
^Crimes."'  ^^"ced  to  stand  there,  whether  followed  with  that  punishment  or 
________  not,  was  considered  as  rendering  him  infamous  ;(1)  but  the  mo- 

(1)  Vide  Com.  *^6''i  practice  has  with  more  propriety  been  to  consider  the  offenct 
Dig.  Test-  and  not  the  prmishment,  as  that  to  which  infamy  is  attached  ; 
'2.  Co.  Litt.  and  it  is  now  held,  that  unless  a  man  is  sentenced  to  the  pillory 
^'^-  for  a  crime  partaking  of  fraud,  the  mere  circumstance  of  an  infa- 

(2)  Rex -J.  mous  punishment  being  inflicted,  does  not  destroy  his  compe- 
rl'o  c'as  4%'*^"^-^'^^)  ^"^'  therefore,  a  man  being  convicted  of  a  treasonable 
Clancey's  libel,  or  slanderous  words  on  the  government,  and  for  that  sen- 
cue%08'.'^^'  tenced  to  the  pillory,(3)  is  not  thereby  rendered  incompetent; 
Vide  Saik.      and  on  the  other  hand,  if  he  be  convicted  of  barratry,  or  other 

'      ■        infamous  offence,  though  he  is  only  sentenced  to  be  fined,  such 

(3)  Chater  v.  conviction  renders  him  incompetent.f4) 

3  Lev.  426.  AVhen  a  man  is  convicted  of  any  of  the  offences  before  men- 
_  ^  tioned,  and  judgment  entered  up,  he  is  for  ever  afterwards  in- 

f+)  RexT'.  r  .  ,  ,  ,  .  .  11-1 

J'^ord,  Saik.  competent  to  give  evidence,  unless  the  stigma  is  removed,  which 
690.   A  ide      \^  ^.^gg  ^f  ^  conviction  of  perjury,  on  the  Statute  of  5  Eliz.  c.  9, 

etiam  Pen-  r     j      j  > 

dock  dem.  Can  never  be  by  any  means  short  of  a  reversal  of  the  judgment, 
Matkinder  ^' ^^^  ^^^  Statute  has  in  this  case  made  his  incompetency  a  part 
'2  Wiis.  18 ;  of  the  punishment  ;(5)  but  if  a  man  be  convicted  of  felony  or  per- 
'  "'  '■  jury,  or  any  other  offence  at  common  law,  and  the  King  pardon 
(5)  Rex  7'.  him  by  name,  or  grant  a  general  pardon  to  all  such  convicts, 
i:85.^  ^'  **  this  restores  him  to  his  credit,(6)  and  the  judgment  no  longer 
forms  an  objection  to  his  testimony.     In  these  cases,  however 

(C>)  Vide  1  ,       •'    ,  ,   ,  ,  ,  ,  .  ;    ^1 

Venir.  549.  an  actual  pardon  must  be  shewn  under  the  great  seal,  the  war- 
iSt.  Tr.  682.  j.^^j^^  ^^^  j^  Under  the  King's  sign  manual  not  being  sufficient.(7) 
(7)  Gully's      Peers  of  Parliament  and  clergymen,  who  are  entitled  to  benefit 

ease,  Leach. 


Cr.  Cas.  115. 


In  JMassac/nisctts,  nothing  short  of  a  conviction  on  an  indictment  for  crimen  Jalsi, 
and  a  judgment  on  it,  is  a  sufficient  olijection  to  the  competency  of  a  witness.  Cash- 
man  v.  Loker,  2  Mass.  Rep.  108.  CommoniveiiUh  v.  SnM,  3  Do.  82.  Churchill  v. 
Snter,  4  Do.  162. 

It  has  likewise  heen  held  that  the  conviction  of  an  infamous  crime  in  a  foreign 
country,  or  in  any  other  of  the  U.  Stuti-s,  <loes  not  render  the  subject  of  such  con- 
viction an  incompetent  witness  there.    Commoirwealth  v.  Green,  \7  Do.  515. 

Qi/ere,  Whether  in  JMaryland  a  nnilaito  born  of  a  manumitted  negro  mother,  is 
a  competent  witness,  against  a  free  born  wljjle  christian,  in  a  prosecution  for  felony. 
The  State  v.  Fisher,  1  Har.  &  .fohns.  Rep.  750. 

A  convict  transported  is  not  disqualifud  from  be  ing  a  witness,  unless  it  be  proved 
he  was  transported  for  some  ofTence  made  felony  or  infamous  by  the  common  law, 
or  by  some  Slatnte.   CUirke's  les.  v.  Hall,  2  flar.  U  M'llen.  Rep.  378. 

So,  one  transported  from  Great  Britain,  cannot  be  restored  to  his  credit,  without 
acttial  service,  during  the  seven  years.  Stale  v.  Ridgeley,  ibid-  120. 

Rut  the  party  objecting  must  prove  that  he  did  not  serve  out  the  seven  years. 
Cole's  les.  v.  Cole,  1  Har.  <J  Johns.  Rep.  572.— Am.  Ed. 


WITNESSES.  2@i 

oF  clergy  unconditlonally/l)  and  where  no  judgment  is  given,  Ch.  m.  s.  2. 
are  not  incapacitated  by  the  conviction  of  a  clergyable  offence,  ^'cl'imes.*'' 

But,  in  other  cases,  the  convict  is  incompetent  till  restored  by 

one  of  the  means  pointed  out  by  the  Statutes,  in  lieu  of  the  old  (j)  siat.iEd. 
mode  of  purgation.     If  he  be  burnt  in  the  hand  and  discharged,  c.  «•  12,  s.  4. 
his  credit  is  thereby  restored,  and  he  becomes  a  competent  wit- 
ness, because  the  burning  in  the  hand  amounts  to  a  Statute  par- 
dpn,(2)  which,- whether  particular  or  general,  always   restores  [^j,,^^Jjig. 
competency  ;  and  in  this  case,  if  the  record  be  produced  whereby  "'ain,  Sir  T. 
clergy  was  granted,  it  is  sumcient,  without  proving  that  he  was  k^,]  37^ 
actually  burnt.(3)     By  Stats.  4   Geo.  1,  c.  11  ;  and  19  Geo.  3,  c. 
74,  if  a  person  convicted  of  a  clergyable  offence  be  transported,;,,,.  7  ,\nn. 
fined,  or  whipped,  instead  of  being  burnt,  his  competency  is  also^o'".  Dig. 
restored  ;  but  when  judgment  of  death  is  given,  and  the  convict  (a.)  4. 
receives  a  conditional  pardon  on  being  transported  for  life,  he  is 
not  thereby  rendered  competent;*  and  by  Stat.  31  Geo.  3.  c.  35, 
it  is  enacted,  that  no  person  shall  be  an  incompetent  witness  by 
reason  of  a  conviction  of  petty  larceny.     Still,  though  competent, 
the  conviction  in  all   these   cases  would  much   affect  his  credit 
with  a  jury. 

To  found  this  objection  to  the  testimony  of  a  witness,  the 
party  who  intends  to  make  it  should  he  prepared  with  a  copy  of 
the  judgment  regularly  entered  upon  the  verdict  of  conviction ; 
for  until  such  judgment  is  entered,  the  witness  is  not  deprived 
of  his  legal   privileges. (4 Yi)     This  proof  was  formerly  as  now C^')  Wicks  t^ 

XI  1  .      ,  f  •    .      .  ,  •         •  1.   .  •       J     r       -x  Sraallbrooke, 

the  only  mode  by  which  the  objection  could  be  raised,  tor  it  was  1  ged.  51. 
then   considered  as  a  rule,   that  no    man  could  be  examined  to  ^^^J?-  ^*°" 

.     ^  ,.  J  J        •    •         Sel,  Cowp.  3. 

prove  his  own  infamy  :(5)  But  according  to  a  modern  decision  see  also  Rex 
on  this  subject,  though  a  man   cannot  be  asked   any  question^  ^*^^'' *"'^^" 
tending  to  convict  him   of  a  crime,(6)  and  thereby  be  put  in 
jdanger  from  his  own  examination,  yet  he  may  be  asked  whether  !^^^  ^l^j^^^ 
he  has  been  already  convicted,  and   has  suffered  the  judgment  594.  Bui.  N, 
of  the  law;  for  his  answer  to  these  questions  can  put  him  in  no    ' 

-___ (6)  Rex  V. 

Eilwai-ds,4T, 
•  Vide   Bullock  v,  Dodds,  2  Bam.  &  Jlld.  258,  in  wliicli  it  was  holden  that  a  Rep.  440. 
capital  convict,  who  was  pardoned  on   condition  of  transportation    for  life,  was  not 
restored  to  his  legal  abilities  by  having  gone  to    Botany  Bay  and   returned  from 
thence  by  the  license  of  the  Governor,  though  such  Governor  had  powei-  by  his  com- 
mission to  remit  any  part  of  the  sentence. 

(i)  Objections  to  the  competency  of  a  witness,  founded  on  a  conviction  of  crime, 
must  be  made  at  the  trial,  and  when  the  witness  is  offered  to  be  sworn,  and  must 
be  supported  by  the  record  of  the  conviction  and  judgment.  Common-wealth  V. 
Green,  17  .Mass.  Rep.  515. 

But  in  The  State  v.  Ridgley,  2  Har.  &  M'Hen.  Rep.  120,  the  Court  determined 
that  parol  evidence  was  admissible,  to  prove  a  man  a  convict. — Am,  Eo, 

Dd 


g02  WITxXESSES. 

Ch.  III.  s.  2.  further  peril ;  and  therefore  when  a  man  came  to  justify  himself 
Crimes."    ^^  '^^'^'  ^'^®  counsel   opposing  him  was  permitted  to  ask  him, 

whether  lie  had  not  stood  in  the  pillory  for  perjury  ;  and,  on  his 

admitting  the  fact,  he  was  of  course  rejected  ;  but  in  a  very  late 
Rex  V.  Inba-  case  the  old  rule  was  adhered  to,  and  it  was  held  that  a  man 
terCiueii.ion'^o"^^^  "^*  ^^  rendered  incompetent  by  his  own  acknowledgment 
8  East,  "7.     that  he  had  been  convicted  of  felony,  but  that  a  copy  of  the 

judgment  should  be  produced. (A:) 
Disgraced  by  fhe  practice  of  asking  a  witness  either  on  the  voir  dire,  or  on 
ainination.  cross-examination,  any  question,  except  such  as  might  tend  to 
make  him  accuse  himself  of  a  crime  of  which  he  had  not  been 
convicted,  and  therefore  expose  himself  to  prosecution,  had  so 
long  continued  without  objection,  that  no  one  at  the  bar  thought 
of  questioning  the  legality  of  it.(/)  But  some  of  the  Judges, 
struck  perhaps  with  the  injury  which  in  some  few  instances, 
have  been  done  to  the  feelings  of  an  honourable  and  virtuous 
mind,  and  relying  on  the  dicta  of  some  of  their  predecessors, 
have  lately  thought  that  neither  convenience  nor  authority  jus- 
tifies this  mode  of  examination  ;  and  ha^'e  therefore  laid  it  down 
as  a  rule,  that  a  witness  shall  not  be  rendered  infamous,  or  even 
disgraced  by  his  own  examination,  as  to  facts  not  connected 
with  the  cause  in  which  he  is  examined.  The  highest  and  most 
enlightened  characters  in  the  profession  were,  at  one  time, 
much  divided  on  this  point ;  and  even  in  the  decisions  which 
have  taken  place  since  the  first  publication  of  this  work,  different 
Judges  appear  to  have  proceeded  on  different  principles,  and 
to  have  rejected  or  permitted  the  examination  to  different  ex- 
tents.(m) 

{k)  Where  the  son  combined  with  the  father  to  protect  the  property  of  the  latter 
from  his  creditors,  by  rccei\ing  a  deed  from  him,  it  was  ruled  that  the  son  was  pri- 
vileged from  giving  evidence  of  the  fact,  in  an  action,  brought  to  invalidate  a  deerf 
given  to  another  brother  under  similar  circumstances.  Galbraith  et  al.  v.  Eichel- 
berger,  3  Yeates''  Rep.  515. 

A  Court  of  Chancery  will  not  compel  tlie  discovery  of  that,  which  if  disclosec 
■would  ch.irge  the  party  with  a  crime.  Butler  v.  Catling,  1  Hoot's  Rep.  310. 

A  Judge  is  not  bound  to  answer  questions  which  may  impeach  his  conduct  as  a 
public  officer.  Jackson  ex.  d.  Wyckoffw  Humphrey,  I  Johns.  Rep.  498. 

In  the  case  of  The  State  v.  Bailley,  1  Penn.  Rep.  415,  the  Court  would  not  per- 
mit the  witness  to  be  asked  if  he  had  not  been  convicted  of  petit  larceny  and  pun- 
ished.— Am.  Ed. 

(/)  The  witness,  and  not  the  Court,  has  the  right  to  Judge  of  the  tendency  of  a 
question  i)ut  to  hixn,  whether  it  wdl  criminate  him  or  not.  State  v.  Edwards,  2 
J\'oU  &  M' Cord's  Rep.  13 Am.  Ed. 

(m)  The  maxim  nemo  allegans  turpitudinem  suam  andiendiis  est,  does  notappl^- 
to  witnesses.    Broivn  v.  Downing,  4  Serg,  &  R.  Rep,  49*. 


WITNESSES.  gQ3 

rhe  first  case  which  came  before  the  Court  after  the  original  Cii.  in.  s.  2. 
publication  of  this  book)  and  while  the  subject  continued  to  ex-  "'^c^t''''t'"§ 
cite  some  interest  in  Westminster  Hull,  was  that  of  the  King  v«    . 


The  Inhabitants  of  Castel  Careinion,  before  cited,  wherein  the  vide  ante 
Court  decided  that  the  record  of  conviction  must  be  produced -'^^• 
to  reject  the  testimony  of  a  witness ;  and  after  several  decisions 
at  Nisi  Prills,  wherein  nothing  was  decided,  arose  the  case  of 
Spenchley  qui  tarn  v.  De  If  illot.  That  was  an  action  for  usury  ;Sr)enchiey  r. 
the  defendant's  counsel  wished  to  cross-examine  the  plaintiff's  7  ^.^5,,  ms. 
witness,  as  to  contracts  made  loith  several  other  persons,  from 
whom  he  had  taken  up  money  ;  for  the  purpose  either  of  rais- 
ing an  inference  that  the  transaction  with  the  defendant  was 
of  the  same  description,  or,  in  case  the  witness  misrepresented 
those  transactions,  of  entitling  themselves  to  call  the  persons 
with  whom  they  took  place  to  contradict  him.  Lord  Ellen- 
borough,  at  Nisi  Prius  refused  to  permit  these  questions  to 
be  put  to  me  witness  :  and  a  motion  being  made  for  a  new 
trial,  the  Court  were  all  decidedly  of  opinion,  that  it  was  not 
competent  to  counsel  on  cross  examination  to  question  the 
witness  concerning  a  fact  wholly  irrelevant  to  the  matter 
in  issue,  if  answered  affirmatively,  for  the  purpose  of  dis- 
crediting him  if  he  answered  in  the  negative.  They  observed, 
that  the  rule  had  been  laid  down  again  and  again,  that,  upon 
cross-examination  to  try  the  credit  of  a  witness,  only  general 
questions  could  be  put;  and  he  could  not  be  asked  as  to  any 
collateral  and  independent  fact,  merely  with  a  view  to  contra- 
dict him  afterwards  by  calling  another  witness.  The  danger  of 
such  a  practice  they  said  would  be  obvious,  besides  the  incon- 
venience of  trying  as  many  collateral  issues  as  one  of  the  par- 
ties chose  to  introduce.  Lord  Ellenborough  added,  that  he 
had  ruled  this  point  again  and  again  at  the  sittings,  till  he  was 
quite  tired  of  the  agitation  of  the  question ;  and  therefore  he 
wished  a  bill  of  exceptions  should  be  tendered  by  any  party  who 
was  dissatisfied  with  his  judgment,  that  the  question  might  be 
finally  put  at  rest. 

In  these  cases  we  may  observe,  that  the  Court  would  not  per- 
mit any  examination  into  mattere  not  immediately  connected 
with  the»  cause,  for  the  purpose  of  impeaching  the  character  and 

It  does  I  ot  apply  to  witnesses  to  instruments  not  negotiable.  Doe  ex.  d.  Gwyn  et 
at.  V.  .SVofce-v  et  al.  2  Hawk.%^  Rep.  235. 

Till;  Court  will  alwajs  instiuct  the  witness  to  enable  liira  to  deleiminu  whether 
he  may  be  jeoparde<l  b\  his  ansB'c  ;  and  it'thi-  answ  r  lorms  only  one  link,  m  the 
chain  of  testimony  against  him,  h^  is  not  bound  to  answer.  State  v.  Edwards, 
2  A'ott  W  M' Cord's  Rep.  13.— Asi.  Ed. 


204! 

Ch.  III.  S.2. 

Discrediting 

tlieiTi. 


(1)  Harris  v. 
Tipi-et,  2 
Cain  ph.  637. 
Append. 

(2)  Yewen's 
case,  Ibid, 
63.3. 


WITNESSES. 

credibility  of  the  witness.  In  others,  which  came  before  Mr. 
Justice  Lawrence,  he  permitted  questions  to  be  asked  the  wit- 
ness, as  to  his  conduct  in  attempting  to  dissuade  other  witnesses 
from  attending  to  give  evidence  in  the  cause,(l)  or  as  to  his  hav- 
ing been  himself  charged  with  felony,  by  the  person  against 
whom  he  appeared  as  a  witness  ;(2)  but  ruled,  that  his  answer 
must  be  taken  as  to  the  fact,  and  that  no  other  witness  could  be 
called  to  contradict  him  ;  thereby,  in  some  respects,  breaking 
in  upon  the  rule,  that  he  could  not  be  disgraced  by  his  own  exa- 
mination. In  the  course  of  the  proceedings  on  the  bill  of  pains 
and  penalties  against  the  Queen,  the  House  of  Lords  and  the 
Judges  seem  to  have  gone  still  further  ;  for  when  an  attempt  was 
made  to  discredit  a  witness  of  the  name  of  Sacchi,  by  shewing 
that  he  had  attempted  to  suborn  other  witnesses  against  the 
Queen,  no  question  was  made  whether  vvitnesses  could  be  called 
to  prove  that  fact,  but  only,  whether  it  was  competent  so  to  im- 
peach his  credit,  without  first  cross-examining  him^s  to  its  ex- 
istence. While  the  point  was  new,  1  offered  to  the  profession, 
as  part  of  the  text,  such  arguments  as  appeared  to  me  applicable 
to  both  sides  of  it ;  but  as  it  may  now  be  considered  as  settled, 
that  matters  wholly  foreign  to  the  cause  cannot  be  inquired  into 
from  the  witness  himself,  those  arguments  are  now  reprinted  in 
the  Appendix. 

One  who  is  particips  crhninis  is  a  competent  witness  for  fhe 
plaintiff'  or  prosecutor,  in  every  case,  though  left  out  of  the  de- 
claration or  indictment,  for  the  purpose  of  being  called  as  a  wit- 
ness ;  and  if  he  has  been  made  a  defendant,  he  may  at  any  time 
VideGilb.      jjg  made  a  witness,  by  entering  a  nolle  prosequi  as  to  him.     In 

Ev.  139.  Cases  ^-    r     .-         u  •  j-      u  r   xu 

Temp  Hard,  trespasses,  where  a  satistaction  by  one  is  a  discharge  oi  the 
others,  it  may  go  to  his  credit;  and  much  more  in  criminal  cases, 
where  a  promise  of  pardon  has  been  given  him,  but  no  actual 
pardon  granted.  Indeed  it  has  been  thought  by  some,  that  in  a 
criminal  case,  a  witness  who  has   had  a  promise   of  pardon  is 

Cro.  Cas.  1  "i- ^ijgpg^y  rendered  incompetent  on  account  of  the  strong  bias 
which  the  promise  must  give  to  his  mind,  but  this  is  now  consi- 
dered as  affecting  his  credit  only  :  and  even  where  a  woman  ad- 
mitted, on  her  examination,  that  she  had  sworn  falsely  against  a 
person  whom  she  charged  with  being  the  father  of  ^  bastard 
child  ;  she  was  still  considered  as  competent  to  prove,  on  an  in- 
dictment for  a  conspiracy,  against  third  persons  that  they  had 

Rex  w.  Teal,  suborned  her  to  commit  the  perjury.     And  in  like  manner,  in  an 

11  East,  307.  .  .  1    r       1  ^  r  1  • 

action  against  a  defendant  as  part  owner  or  a  ship  :  a  person 
Tho'raa^         who   had   made  an  affidavit  that  the   defendant  was   such  part 

5  M.  &S.      owner,  in  order  to  have  his  name  entered  as  such  in  the  register, 

244. 


Accomplices 
or  joint  tres- 
passers. 


163.  Bui.  N. 
P.  286,  and 
cases  there 
eited. 

Dr.  Dodd's 
Cas   Leach. 


See  Rudd's 
case,  post. 


WITNESSES.  205 

was  held  to  be  competent  to  prove  that  he  had  inserted  his  name  Ch.  ni.  s.  2. 
without  his  consent,  and  that  in  fact  the  defendant  had   no  in-       *^  '^'°"' 
terest.  — — — — 

Under  this  head,  of  the  moral  character  of  witnesses,  may  be 
classed  the  notice  which  the  law  takes   of  their  religious  prin- 
ciples or  prejudices.     At  the  time  when  a  gloomy  superstition 
had  obscured  all   liberal  sentiment,  we  are  not  to  suppose  that 
our  own  laws,  more  than  those  of  surrounding  nations,*  were 
favourable  to  men  whom  the  austerity  of  its  professors  stigma- 
tised as  infidels.     Those  to  whom  the  divine  doctrines  of  the 
Gospel  were  unknown,  were  deemed  incapable  of  binding  them-  Co.  Liu.  6. 
selves  by  the  solemn  obligations  of  an  oath,  the  zeal  of  our  an-  ^g^^]^ 
cestors  not  permitting  them  to  believe  that  the  profane  rites  of 
another  religion  could  be  obligatory  on  the  consciences  of  its 
votaries,  or  be  legally  acknowledged  in  a  Christian   Court  of 
Justice.     Jews  were  received  in  the  Common  Law  Courts,  be-  Vide  Giib. 
cause  they  could  swear  on  the  Old  Testament,  which  is  part  of^j^ai  p^Q* 
our  belief;  but  the  civil  law  went  so  far  as  to  exclude  even  them,  2J'9. 
5ind  all  heretics,  from  examination.     I  am  not  aware  that  it  has 
ever  been   expressly  determined  thafc  excommunicated  persons 
cannot  be  received  as  witnesses,  though  dicta  are  to  be  found  Giib.  Law  Er. 
which  go  to  establish  the  position  ;  had  the  question  arisen  even 
before  the  late  Statute,  a  contrary  decision  would  probably  have 
taken  place,  for  in  modern  times  much  more  liberality  has  been 
shewn  in  this  particular.     But  now,  by  Statute  53  Geo.  3,  c.  12r, 
s.  3,  it  is  enacted,  that  no  person  who  shall  be  declared  or  de- 
nounced excommunicate  shall  incur  any  civil  penalty  or  inca- 
pacity whatever  in  consequence  of  such  excommunication,  save 
such  imprisonment,  not  exceeding  six  months,  as  the  Court  pro- 
nouncing such  person  excommunicate  shall   direct.     Sir  Mat- 
thew Hale,  to  whom  the  want  of  care  or  zeal  in  protecting  the 
religion  of  his  country  can  never  be  imputed,  seems  to  have 
been  of  opinion  that  infidels  might,  in  some  cases,  be  examined,  2  Hal.  P.  C. 
for  he  puts  them  all  on  the  same  footing  as  Jews,  and  observes,  that,    ^" 
"  it  were  a  very  hard  case,  if  a  murder  committed  here  in  Eng- 


*  It  hits  been  obst- rved  by  Sir  Matthew  Hale,  that  the  SpMiiards  hail  special 
laws  touching  the  form  of  oaths  to  infidels:  and  Lord  Mansfield,  then  Solicitoi- 
General,  in  his  argument  in  the  great  case  of  Omichun<t\.  liarktr,  also  mentioned, 
that  in  Spain,  Moors  were,  in  very  early  times,  permitted  to  swear  on  the  Koran, 
and  cites  the  form  of  their  oath  from  Selden.  We  are  not  to  ascribe  this  deviation 
from  the  practice  at  th.Tt  time  common  in  Christian  countries,  to  any  extraordinary 
liberality  in  the  minds  of  the-  Spaniards,  but  to  the  divided  empire  which  the  Moors 
held  with  ihem,  and  which  would  necessarily  be  the  cause  of  much  indulgence  to 
the  latter. 


306  wrrNEssEs. 

Ch.  m.  s.  2.  land,  in  presence  only  of  a  Turk  or  a  Jew,  that  owns  not  the 

Religion.    Christian  religion,  should  be  dispunishable,  because  such  an  oath 

"  should  not  be  taken  which  the  witness  held  binding,  and  cannot 

swear  otherwise  ;  and  possibly  might  think  himself  under  no 

obligation  if  sworn  according  to  the  usual  style  of  the  Courts  of 

England.     But  then,  (he  adds)  it  is  agreed   that  the  credit  of 

such  a  testimony  must  be  left  to  the  jury."*     Notwithstanding 

this,  the  general  received  opinion  was,  that  they  could  not  be 

Omichund  v.  witnesses,  till  the  case  of  Omichund  v.    Barker  came  before 

Atk  sV-        Lord  Hardwicke,  when  it  was  solemnly  decided   by  him,  as- 

1  Wiis.  84,     sisted  by  the  two  Chief  Justices  (Lee  and  Willes,)  and  the  Chief 

Wiiies,  53S,    Baron  Parker,  that  the  evidence  of  a  Gentoo,  sworn  according 

S-C.  to  the  ceremonies  of  his  own  religion,  was  admissible:  and  the 

general  principle  established,  that  the  testimony  of  all  infidels, 

Rexri.  Tay-   vvho  are  not  atheists,  was  to  be  received.!     In  a  late  case  be- 

1 01'    Hcnk 

N.'p.  11.  fore  Mr.  Justice  Buller,  he  would  not  suffer  the  particular 
opinions  of  a  man,  professing  the  Christian  religion,  to  be  exa- 

RpxTj. White, mined  into;  but  made  the  only  question,  whether  he  believed 

Car48«^  ™  the  sanction  of  an  oath,  the  being  of  a  Deity,  and  a  future  state 
of  rewards  and  punishmetits  ?  But  a  person  who  has  no  idea  of 
the  being  of  a  God,  or  a  future  state,  is  not  admitted.(n) 

Form  of  fhe  usual  form  of  administering  the  oath  to  Christians  is,  by 

the  witness  laying  his  hand  on  the  New  Testament,  while  the 
oath  is  repeated  to  him,  and  kissing  the  book  at  the  conclusion  ; 

•  How  different  is  this  mild  and  humane  language,  from  the  intemperate  zeal  of 
Sir  Edwahd  Coke,  who  says,  "  that  all  mjidels  are  in  law  perpetual  enemies  ;  for 
between  them,  as  with  the  devils  whose  subjects  they  be,  and  the  Christian,  there  is 
perpetual  hostility,  and  can  be  no  peace."    Aide  Calvin's  Case,7  Co.  17,  a. 

t  So  in  Fachina  v.  Sabine,  2  Str.  1104,  it  was  held  at  the  council,  in  the  pre- 
sence of  the  two  Ciiief  Justices,  that  a  JMahomedan  might  be  sworti  on  the  Koran. 
See  also  JMorgayi^s  Case,  JLeach's  Cro.  Cas.  64.  By  the  reiiort  of  Lord  C.  J. 
Willes' judgment,  from  his  own  manuscnpt  lately  published,  it  should  seem  that 
be  confined  his  opinion,  as  to  the  admissibility  of  Gentoos,  to  the  particular  case  of  a 
contract  made  in  a  foreign  country,  but  the  subsequent  decisions  have  left  no  doubt 
that  they  are  adniissihlc  in  all  cases.  At  the  O.  U.  Scss.  Itec.  1804,  Erpune,  a  na- 
live  of  China,  being  examint-d  as  a  witness  (before  Mr.  B.  Graham)  on  an  indict, 
jnent  against  .'?/OT  Alsleij  and  Thomas  Gnnn,  for  felony,  was  sworn  according  to  the 
form  of  the  Courts  of  China,  viz.  by  holding  a  saucer  in  his  hand,  which  hi  dashed 
to  pieces  at  the  conclusion  of  the  oalh,  believing,  as  he  stated,  that  God  would  cause 
his  body  to  be  cracked,  as  he  cracked  that  saucer,  if  he  did  not  tell  the  truth.  Sess. 
Pap.  1804  and  1806,  p.  62. 

(?i)  A  witness  not  allowed  to  give  testimony,  unless  he  have  discretion,  and  be- 
lieves z'n  a /iiiwrt;  sf(i/e  o/j'g-o'a/'Js  one/ pu?us/imen^s.  State  V.  Doherty,  2  Ovei'ton^s 
Hep.  SO.  Jackson  ex.  d.  Tuttle  v.  Gridley,  18  Johns.  Rep.  98.  Curtis  v.  Strong, 
4  Doll's  Rep  51. 

But  in  Hur.scom  v.  Ilitnscom,  15  Sflass.  Rep.  184,  it  was  decided  that  a  disbelief 
of  a  future  state  of  existence,  went  only  to  the  credibility  of  the  witness. — Am.  Ed 


WITNESSES.  207 

and  the  like  ceremony  is  observed  with  respect  to  the  Jews  cti.  in.  s.  2, 
when  they  swear  on  the  Old  Testament :  but  this  form  has  fre-     ^^<=''g'on- 
quently  been  dispensed  with.     In  one  case,  Doctor  Owen,  Vice  ~~* 

Chancellor  of  Oxford,  being  called  as  a  witness,  refused  to  be  Dutton  v. 
sworn  by  laying  his  right  hand  on  the  book  and  kissing  it,  but  ^°"^'  '^  ^"''  ^• 
caused  the  book   to  be  held  open  before  him,  and  lifted  up  his 
right  hand  ;  the  jury  in  this  case  prayed  the  opinion  of  the  Court, 
if  they  ought  to  think  this  testimony  as  strong  as  that  of  a  wit- 
ness otherwise  sworn ;  and  Glin,  Chief  Justice,  told  them,  that 
in  his  opinion,  he  had  taken  as  strong  an  oath  as  any  other  wit- 
ness ;  but  said,  that  if  he  were  sworn  himself,  he  would  kiss  the 
book.     In  like  manner,  a  Scotch  covenantor  has  been  permitted 
to  swear  by  holding  up  his  hand  ;(1)  and  a  man  who  was  edu- (J)  Mild- 
cated  a  Jew,  but  at  the  time  of  giving  his  evidence  professed  Lg^^gh'^cro. 
Christianity,  though  he  had   never  been  baptised,  nor  formally  Cas.  459. 
renounced  Judaism,  was  also   permitted  by  Lord   Kenyon  topg^k^N.?. ' 
swear  on  the   New  Testament  ;(2)  for  as  Lord  Chief  Baron  23. 
Parker  observed,  in  Omichund  v.  Barker,(S)  "  Oaths  are  to  be  f^)  Rex  -j. 
administered  to  all   persons  according  to  their  own  opinions  Giiham,  1 

'  P«r*    r^aQ    *78-'* 

and  as  it  most  affects  their  consciences."  In  the  proceedings 
before  the  House  of  Lords,  on  the  bill  of  pains  and  penalties  (^)  ^  j^*''*  *-■ 
against  the  Queen,  {August  24th,  1820,)  certain  Italian  wit- Cowp.  389. 
nesses  were  examined,  and  they  having  been  sworn  in  the  ordi- 
nary form,  the  counsel  for  the  Queen,  on  the  authority  of  this 
expression,  were  proceeding  to  inquire  of  the  witness,  "whether 
there  v/ere  any  forms  wanting  in  the  oath,  which  would  be  used 
in  his  own  country,  and  which  he  deemed  necessary  to  the  bind- 
ing his  conscience  ?"  and  an  objection  being  made  to  this  course 
of  examination,  a  question  was  propounded  to  the  Judges,  who 
answered,  "  That  although  the  witness  should  have  taken  the 
oath  in  the  usual  form,  without  making  any  objection,  he  might 
nevertheless  be  afterwards  asked,  whether  he  considered  the 
oath  he  had  taken  as  binding  on  his  conscience  ?  and  that  if 
he  answered  in  the  affirmative,  he  should  not  be  questioned 
whether  he  considered  any  other  mode  of  taking  an  oath  more 
binding. "(0)     This  certainly  is  the  best  test  of  truth ;  and  the 

(o)The  opinions  of  a  witness  relative  to  the  obligations  of  anonth,  may  be  proved 
by  his  declarations  out  of  Court.     Curtis  v.  Strong,  4  Day''s  Rep.  51. 

And  in  such  case  the  witness  cannot  be  adnn'itled  to  deny  or  explain,  in  Court, 
the  declarations  innputed  to  him,  as  it  would  be  absurd  to  admit  a  man  to  his  oath 
for  the  purpose  of  learning  from  him  whether  he  had  the  necessary  qualifications  tw 
be  sworn,  ibid. 

Evidence  of  conversations  and  declarations  held  by  one  offered  as  a  witness,  was 
given  to  prove  him  aninfidel,  who  disbelieved  in  revealed  religion,  and  the  being 
of  a  God.  Boiv  V.  Parsons,  I  Root's  Rep.  480. 

The  defendant  offered  to  prove  that  the  plaintiff,  who  was  sworn  as  a  witness, 


g08  WITNESSES. 

Ch.  m.  s.  2.  Legislature,  on  this  ground,  have,  by  several  Acts  of  Parliament, 
"^''g'""-     (viz.  7  &  8  mil.  5,  c.  34  ;  1    Geo.  1,  s/  2,  c.  6  ;  8  Geo.  1,   c.  6, 

and  22  Geo.  2,  c.  30,  s.  46,)  dispensed  with  any  oaths  at  all  from 
Gar<iii<^''r,*2  Quakers  in  civil  cases  ;  but  their  afiBrmation  is  stiil  inadmissible 
Bun-.  117.  [yi  criminal  proceedings,  to  charge  or  exculpate  another,  though 
('2)  Castle  tj.  it  may  be  read  to  exculpate  themselves. (1)  It  has  been  held, 
2  St^ 's^^'    ^^^^  ^"  appeal  of  death,(2)  and  motions  for  informations(3)  and 

attachments,(4)  or  to  answer  the  matters  of  an  affidavit,(5)  are 
W  h  "s^t  criminal  proceedings  within  these  Statutes ;  and  that  conse- 
S72.  quently,  in  such   cases,  their  affirmation   is   inadmissible;  but 

(4)  Rex  v.      th^t  a  motion  to  quash  an  appointment  of  overseers,(6)  or  a  qui 
Bell,  And.      fam  action,(7)  are  not  criminal  proceedings,  and  that  in  those 

cases  the  affirmation  of  a  Quaker  may  be  received  (p)* 

(5)  Olivers. 

LavvTence,       ^^  ^^  ^^  atheist  who  denied  the  existence  of  a  God,  the  doctrines  of  th  -  Trinitv,  and 
2  otra  946 

the  truth  of  divine  revelation  ;  and   the  Court  allowed  proof  as  to  the   denial  of  the 

(6)  Rex  V.        being  of  a  God.  Beardsley  v.  Foot,  2  Booths  Rep.  399. — Am.  Ed. 
Turner,  2 

Stra.  1^19.  (/")  One  who  was  not  a  Quaker,  refusing  to  be  sworn,  on  the  ground  of  conscien- 

tious scruples  arising  from  a  declaration   formerly  made,  was  committed  for  con- 

(7)  Atcheson  tempt,  the  liberty  to  affirm  being  strictly  confined  to  Quakers  by  the  laws  and  prac- 
Cow''^'^^82      ^'"^^  of  Massachusetts.   U.  States  v.  CooUdge,  2  Gallis.  Rep.  364. 

^'         '  But  Legislative  provisions  have  been   made  in  most  of  the  States,  making  the 

affirmation  of  a  person  conscientiously  scrupidous  of  taking  an  oath  of  the  same 
efiFect,  as  an  oath. 

A  Jew  who  refused  to  be  sworn  as  a  witness  in  a  cause  tried  on  a  Saturday,  be- 
cause it  was  his  Sabbath,  was  fined  by  the  Court  lOl.  Stanabury  v.  Marks,  1  DaU. 
Rep.  213. 

In  the  case  of  The  Commonmealth  v.  JiUen,  Oyer  and  Tei^miner  at  Philadelphia, 
tried  on  the  20th  jSfovember,  1821,  on  an  indictment  for  murder,  before  Tilghmah 
C.  J.  and  Gibson  J.  upon  impanelling  the  petit  jury,  a  juror  was  called,  and  not  be- 
ing challenged  by  the  prisoner,  was  ordered  to  be  sworn.  The  jiror  prayed  to  be 
excused,  staling  to  the  Court,  that  his  conscience  would  not  allow  him  to  pronounce 
a  verdict  against  any  man  for  a  crime,  punished  with  death.  The  counsel  for  the 
Commonwealth  stated,  that  the  Commonwealth  had  no  right  to  peremptory  chal- 
lenges in  cases  of  felony  ;  that  the  right  of  peremptory  challt-nge  was  taken  from 
them  in  such  cases,  by  Act  29th  March.  1813,  6  Sm.  L.  68,  otherwise  the 
juror  should  be  relieved  by  challenge.  The  prisoner's  counsel  refusing  to  ex- 
cuse the  juror,  the  counsel  for  the  Commonwealth,  after  putting  a  few  questions 
as  to  the  juror's  conscientious  scruples,  challenged  him  for  cause  :  this  Wiis  opposed 
by  the  defendant's  counsel  and  over-ruled  by  the  Court,  and  the  juror  ordered  to 
be  affirmed  :  he  refused  to  take  the  affirmation,  upon  which  the  Court  ordered  him 
to  be  imprisoned  for  twenty-four  hours. 

\n  Sellick''s  Co-sf,  XJ^'ew  York  City  Hall  Recorder,  185,a  juror,  not  belonging  to 
the  society  of  Friends,  under  circumstances  similar  to  „illen's  Case,  {the  Stat,  of  35 
Ed.  I,  not  being  altered,)  was  challenged  by  the  counsel  for  the  prosecution,  and  the 
Court  ordered  the  two  first  persons  sworn  on  the  pannel,  to  be  sworn  as  triors,  and 
upon  an  investigation  of  the  case,  they  found  a  verdict  in  favour  of  the  challt-nge,  the 
juror  therefore  was  set  aside. — Am  En. 

*  In  this  case  of  Atcheson  v.  Everett,  Cowp.  382,  Lord  Mansfield  gave  a  very 
elaborate  judgment  on  the  Statutes  made  for  the  relief  of  Quakers.  ;m>i  on  the  na- 
ture of  oaths  in  general;  the  extensive  learning  of  wliich,  is  only  equalled  by  the 
mild  spirit  of  toleration  inculcated  by  it. 


WITNESSES. 


S09 


SECTION  III. 

Of  persons  incompetent  by  reason  of  their  interest  in  the  cause. 

The  rule  which  has  the  most  extensive  operation  in  the  ex-  Ch.  in.  s.  3. 
elusion  of  witnesses,  and  which  has  been  found  most  difficult  in 
its  application,  is  that  which  prevents  persons  interested  in  the  ■""""""" 
event  of  a  suit,  (unless  in  a  few  excepted  cases  of  evident  ne- 
cessity,) from  being  witnesses  in  it. — What  is  such  an  interest 
as  shall  totally  exclude  testimony,  has  often  been  the  subject  of 
controversy.(j')     The    old    cases  have   gone   upon   very  subtle  f^""  ^*""^ 

1  T.  Rep,' 

{q)  To  exclude  a  witness  on  the  ground  of  interest,  he  nnust  have  a  certain,  not 
St  possible,  benefit  in  the  event  of  th*  suit.  Lenuis  v.  j\fanly,  2  Teates'  Rep.  200. 
Fernslerv.  Carlin,3  S^rff.  &  R.  Rep.  130  Peyton  y.  ffallett,\  Caines' Jtep. 
363.  Gaffe  V.  Stewart,  i  Johns.  Rep.  293,  Stochhamv.  Jones  et  al.  10  Johns. 
Rep.  21 . 

It  is  immaterial  how  small  that  interest  is.  Butler  v.  TVanm,  11  Johns.  Rep.  57. 
Beach  v.  Stmth,  2  Con.  Rep.  269.   Barn-well  et  al.  v.  Mitchell,  S  Do.  101. 

In  Smith  et  al.  v.  Carrinffton  et  al.  4  Cranch's  Rep.  62,  it  was  held  that  if  a  suit 
be  brought  for  distinct  mutters  of  account  or  causes  of  action,  the  witness  may  testify 
as  to  those  in  which  he  is  not  interested.  Vide  Bent  v.  Baker,  3  Term  Rep.  35, 
BcLLER  J.  says,  that  if  a  witness  is  competent  to  answer  any  questions,  he  ought  not 
to  be  rejected  gei)erally.  Et  vide  Skelton  v.  Tomlinson,'!  Root's  Rep.  132. 

But  in  Gage  v.  Stewart,^  Johns.  Rep.  293,  it  was  decided  that  a  witness  inter- 
ested  in  one  part  of  the  demand,  cannot  be  admitted  as  to  another  part. 

The  interest  which  a  person  h-as  m  the  verdict,  or  event  of  the  suit,  is  the  criterion 
by  which  his  competency  is  to  be  tested.  If  he  is  interested  in  the  question,  but  not 
the  verdict,  it  goes  to  his  credit,  but  not  to  his  competency.  Wakeley  v.  Hurt  et  al. 
G  Binn.  Rep.  316.  Comogg  \ .  Mraham  et  al.  i  Yeates'  Rep.Hi.  Farrel  v.  Perry, 
1  Hay-w  Rep.  2.  Madox  v.  Hoskinsjbid.  4.  Porter  \.  JH'Clure,  ibid.  360.  Bliss 
et  al.  v.  Thompson,  4  Mass.  Rep.  448.  Fairchildv.  Beach,  1  Day's  Rep.  266. 
Phelps  V.  Winchel,  ibid.  269,  overruling  the  case  of  Bacon'v.  Minor,  1  Root^s 
Rep.  258,  anil  othi  rs  in  the  same  book. 

A  remote  <  r  contingent  interest  affects  his  credit  only,  Steioart  v.  Kip,  5  Johns. 
Rep.  256.  Falls  et  al.  v.  Belknap.  1  Do.  486.  Baker  et  al.  y.  Arnold,  1  Caines' 
Rep.  276.  Peterson  v.  Willing  et  al.  3  Dull.  Rep.  506. 

To  render  a  person  incompetent  to  give  evidence,  on  the  ground  of  interest,  there 
must  be  a  direct  interest,  that  is,  he  must  be  immediately  benefitted  or  injured  by 
the  event  of  the  suit,  or  the  verdict  to  be  obtained  by  his  evidence,  or  given  against 
it,  must  be  evidence  for  or  against  him  in  another  action,  in  which  he  may  after- 
wards be  a  party.  Hayes  v.  Grier,  4  Binn.  Rep.  80.  Van  J^Tuys  v.  Terhune,  3 
Johns.  Cos.  82.  Case  v.  Reeve  et  al.  14  Johns.  Rep.  79.  Day  v.  Green,  Hardin's 
Rep.  117.  Phelps  v.  Hall,  2  Tyl.  Rep.  399.  Harrison  v.  Harrison,  2  Hayvt.  Rep. 
355. 

In  an  action  against  the  Sheriff  for  a  false  return  of  nulla  bona,  where  th"  goods 
had  been  rescued  by  a  person  claiming  the  property  in  them,  the  Court  held,  that 

E  e 


2X0  XViTNESSES. 

Ch.  III.  s.  3.  grounds  ;  but,  of  late  years,  the  Courts  have  endeavoured,  as  far 
General  Rule,  j^g  pjjggjljjg^  Consistent  with  authorities,  to  let  the  objection  go 

such  person  was  a  witness  on  (he  part  of  the  Sheriff  to  prove  that  the  goods  were 
not  the  property  of  the  debtor,  for  the  Sheriff  by  his  return  was  precluded  from 
maintaining  any  action  against  the  witness  for  such  rescue  ;  he  could  not,  therefore, 
use  the  verdict  in  any  way  against  him,  and  as  to  a  proceeding  by  any  other  person, 
the  verdict  would  be  res  inter  alios  acta,  and  inadmissible  :  the  witness  could  in  no 
way  be  affected  by  the  verdict.  Thomas  v.  Pearse,  5  Price^s  Ex.  Rep.  547. 

If  the  plaintiff  bring  separate  actions  against  joint  trespassers,  they  may  be  wit- 
ntssts  foi-  each  other.  Johnson  v.  Bourn,  1  Wash.  Rep.  i%7. 

Although  the  verdict  may  not  affect,  iu  another  suit,  the  person  offered  as  a  wit- 
ness, yet,  wherever  the  verdict  may  create  another  responsibility,  which  the  law 
would  recognise  and  render  available,  in  favour  of,  or  against  the  witness,  or  in- 
crease or  decrease  an  existing  one,  he  ought  to  be  rejected.  Per  Gibsox  J.  Con- 
rad et  al.  v.  Keyser,  5  Serg.  &  R.  Rep.  370. 

But  where  a  person  renders  himself  interested  by  a  voluntary  act,  for  the  pur- 
pose of  depriving  a  party  of  the  benefit  of  his  testimony,  he  may  be  compelled  to  be 
a  witness.    Long  v.  Bailie,  4  Serg.  &  R.  Rep.  222. 

The  security  in  an  administration  bond,  is  not  a  competent  witness  for  the  admi- 
nistrator. Beanos  exr.  v.  Jenkins''s  adin.  1  Har.  &  Johns.  Rep.  135. 

A  witness  who  is  liable  to  an  action  by  the  p«rty  by  whom  he  is  produced,  in  case 
that  party  should  not  recover,  but  who  is  protected  by  the  Statute  of  Limitations,  is 
competent.  Ludlow  v.  Union  Ins.  Co.  2  Serg.  ij  R.  Rep.  119. 

Where  two  persons  were  jointly  concerned  in  ;a  contract  of  sale,  their  interest 
may  be  severed  by  a  parol  agreement  on  good  consideration  ;  and  one  of  them  after 
the  severance,  is  a  competent  witness  for  the  other,  in  relation  to  a  matter  growing 
out  of  such  contract ;  he  having  parted  with  all  his  interest  in  the  contract.  Smitli 
V.  Allen,  18  Johns.  Rep.  245. 

The  heir  is  not  a  competent  witness  in  an  action  brought  by  aa  executor  against 
an  alleged  debtor  of  the  deceased.  White  exr.  v.  Derby,  \  JMass.  Rep.  239.  Et 
vide  JVest  v.  Randall  et  al.  2  Mason''s  Rep.  181 . 

Jl.  being  in  the  service  of  B.  and  having  engaged  to  pay  his  own  board,  applied 
to  C.  to  board  him,  and  agreed  to  take  his  pay  out  of  goods  from  If's  store,  to  which 
B.  consented  ;  in  an  action  by  C.  against  B.  for  the  board  of  .^.  he  was  offered  as  a 
witness,  and  these  facts  coniing  out  on  the  examination  of  A,  on  his  voire  dire,  he 
was  rejected  on  account  of  his  interest.  Emerton  v.  Andrews,  4  Jilass.  Rep.  653. 
Sed  vide  the  objections  of  Spencer  J.  to  this  decision  in  Marquand  v.  Webb  et  al. 
\&  Johns.  Rep.  ^9. 

In  an  action  for  repairs  done  to  a  vessel,  against  one  part  owner,  who  neglects  to 
plead  the  non-joinder  of  the  others  in  abatement,  another  part  owner  is  not  a  wit- 
ness for  the  plaintiff,  to  prove  the  ownership  of  the  defendant;  for,  although  he 
would  be  li'ible,  as  an  owner,  to  the  plaintitT  in  case  he  failed,  or  if  he  succeeded, 
would  be  answerable  to  the  defendant  for  contribution,  yet  he  has  no  interest,  by 
charging  the  defendant  (a  verdict  against  whom  would  be  evidence  of  his  joint  own- 
ership) to  increase  the  number  of  owners,  and  thus  to  diminish  the  amount  of  con- 
tribution or  loss,  which  he  would  otherwise  himself  be  obliged  to  sustain,  ibid.  Et 
vide  Tompkins  v.  Beers,  2  Roofs  Rep.  498. 

Ill  trover  for  a  chattel  loaned  by  the  plaintiff  to  his  son,  and  eloigned  from  him 
by  a  swindling  contract,  the  son  is  not  a  witness  for  the  plaintiff.  Pierce  v.  Hinds- 
dall,  1  Tyl.  Rep.  153. 

In  an  action  for  a  malicious  prosecution,  brought  for  charging  the  plaintiff  and 
others  with  a  riot  of  which  they  were  acquitted,  the  other  defendants  in  the  indict- 
ment were  rejected  as  witnesses.    Hall  v.  Dwight,  I  Root'' s  Rep.  76. 


WITNESSES. 


311 


to  the  credit  ra.ther  than  to  the  competency  of  a  witness ;  and  the  ch.  iii  s.  3. 
general  rule  now  established  is,  that  no  objection  can  be  made '"■"*^"*"*"'^- 

Vide  Bent  r. 

A  residuary  legatee  cannot  be  a  witness  to  increase  the  fund  on  which  the  red-  Baker,  Ap- 
Jwj/m  depends.  Austin  v.  Bradley,^  Day^s  Rep  466.  pend. 

But  where  his  interest  is  itery  remote,  it  will  merely  go  to  his  credibility.  Gal- 
hraith's  les.  v.  Scott,  2  Ball.  Rep.  95. 

It  seems  a  specific  legatee  cannot  be.  Templets  exr.  v.  Ellett^s  exr.  2  JMunf.  Rep. 
452. 

In  an  action  ai ejectment,  it  was  held,  tliat  a  person  could  not  be  a  witness  to  shew 
that  he  was  the  tenant  in  possession,  and  not  the  defendant.  Brent  ex.  d.  Van  Cort- 
landtetal.  v.  Dyckman,  I  Johns.  Cas.  275. 

A  fewer  of  the  plaintiffixi  ejectment,  cannot  be  a  witness.  Jackson  ex.  d.  Good- 
rich et  al,  V.  Ogden  et  al.  4  Johns.  Rep.  140, 

In  settling  the  concerns  of  a  partnership,  every  partner  ought  to  be  made  a  party, 
and  one  partner,  (though  not  made  a  party  to  the  suit,)  cannot  be  a  witness  for  the 
other,  to  charge  his  eonipanion  in  relation  to  the  partnership.  Waggoner  v.  Gray''3 
adms.  2  Hen  &  Munf.  Rep.  603. 

In  an  action  by  thf  shipper  of  goods,  against  the  oiimer  of  the  vessel,  the  captain 
is  not  a  competent  witness.   Gardner  et  al.  v.  Smallivood,  2  Hayw.  Rep.  349. 

A  collector  who  has  his  commissions  depending  on  the  issue  of  the  suit,  is  not  a 
witness.  Treasurer  of  the  State  v.  JVall,  Tayl.  Rep.  5.  Et  vide  Hunter  v.  JiPJius- 
lan,  ibid.  366. 

A  person  may  be  a  witness  for  the  defendant  to  prove  the  Uuth  of  the  words 
spok'-n  by  the  defendant,  though  the  witness  himself  be  sued  by  the  plaintiff  for 
speaking  the  same  words.  Fowler  v.  Collins.  2  Root's  Rep.  231. 

In  an  action  by  ^.  aga'inst  B.  for  falsely  affirming  C.  to  be  a  man  of  property,  by 
which  »4.  was  induced  to  trust  him  and  take  his  note,  C.  is  a  competent  witness  for 
.4.  to  prove  the  facts,  though  tlie  note  is  unpaid.  Wilcox  v.  Wise  et  al.  1  Day^s 
Rep.  22. 

The  owner  of  a  vessel  who  has  over  paid  money  shipped  in  the  vessel  to  the 
shipper,  and  been  reimbursed  the  amount  by  the  master,  is  a  competent  witness  in 
an  action  brought  by  the  master  against  the  shipper  for  the  same  money,  though  in 
the  first  instance  the  owner  is  liable  for  the  default  of  the  master.  Cortes  v.  Billings, 
1  Johns.  Cas.  270. 

In  an  action  for  a  penalty  for  harbouring  slaves,  brought  against  a  member  of  the 
society  of  Shakers,  a  member  of  that  society  is  a  competent  witness,  although  all 
things  are  held  in  common  by  them,  and  they  have  a  partnership  interest  in  all  their 
concerns  as  a  religinus  sect.  Wells  v.  Lane,  8  Johns  Rep.  361. 

Although  the  manumission  of  a  slave  by  an  infant,  with  the  consent  of  his  guar- 
dian, is  voidable,  yet  it  renders  the  slave  in  the  mean  time  a  competent  witness  for 
his  former  master  ;  the  power  of  revoking  the  manumission  being  an  objection  to 
his  credit  only.    Rogers  v.  Bei^y,  10  Johns.  Rep.  132 

The  assignee  of  a  pre-emption  warrant,  is  held  to  be  a  competent  witness,  if  the 
facts  intended  to  be  proved  bv  his  testiniony,  do  not  lend  to  support  the  title  of  the 
party  producing  him.     Wilson  v.  Speed,  3  Crunch's  Rep  283. 

Upon  the  principle  that  a  witness  is  incoitippti-nt,  who  is  interested  to  defeat  the 
plaintiff's  action,  because  in  case  the  plaintiff  recovtreil,  he  would  be  liable  to  the 
defendant  in  a  suit  in  which  the  record  in  tht  previous  suit,  would  be  evidence 
against  hini,  a  grunior,  who  has  conveyed  land  with  warranty,  is  inadmissible  in 
support  of  his  grantre's  title.  Jackson  ex.  d.  Caldwelh-.  ffiUlenback,2  Johns.  liep. 
394.  Hermance  v.  Vernoy,  6  Do.  5.   Swift  v.  Dean,  ibi.l.  523. 

An  attornty  in  a  suit  may  l>t'  >  \>imined,  tlioiigh  his  judgment  fee  depends  on  his 
success.  J^ewmun  v.  Bradley,  1  Ball.  Rep.  241. 


Sis  WITNESSES. 

Ch.iii.  s.  3.  to  a  witness  on  this  ground,  unless  he  be  directly  interested, 
"'"  that  is,  unless  he  maj  be  immediately  benefited  or  injured  by 

So  though  he  expects  to  receive  a  larger  fee  trom  bis  client,  if  the  latler  sacceeds. 
Miles  V.  O'Bara,  I  Serg.  &  R.  Rep.  2,1. 

If  a  witm  ss  becomes  disqualified,  his  deposition,  taken  before  his  disqualification, 
mav  be  used  in  the  same  manner  as  though  he  were  dead.  GoW  v.  F.ddy  adm, 
\Mass.  Rep.  1. 

A  person  w  ho  has  sold  personal  property,  is  not  a  competent  witness  for  the  ren- 
dee  of  such  property,  in  a  suit  brought  against  him  for  taking  it  away.  For  every 
vendor  of  s'lch  property  is  considered  as  warranting  the  title  of  the  thing  Sold,  though 
there  is  no  express  warranty.  Heermance  v.  Vernoy,  6  Johns.  Rep.  5. 

SEAMEN,  &c. 

One  seaman  cannot  be  a  witness  for  another,  in  the  .Admiralty  Court,  if  the  wit- 
ness and  the  party  have  a  common  interest  in  the  point  in  contest.  As  in  the  case 
of  the  loss  ol  a  ship,  embezzlement  equally  afiecting  the  whole  crew,  &c.  Thompson 
V.  The  Philadelp/ua,  1  Peters'  Adm.  Decisio?is,  211. 

But  wheie  seamen  hdve  made  similar  contracts,  the  brpach  or  performance 
whereof  may  happen  in  one  case,  without  affecting  another,  and  the  like,  one  may 
be  a  witness  for  another,  ibid. 

One  mariner  of  the  sanie  crew,  who  has  signed  the  same  articles,  may  be  a  wit- 
ness for  the  other,  if  he  does  not  join  in  the  libel,  provided  he  is  not  collusively 
omitted.  Poicell  v.  The  Betsey,  2  Browne's  Rep.  350. 

But  in  this  case,  the  civil  law  rule,  requiring  two  witnesses  to  prove  the  fact, 
was  adopted,  ibid. 

But  in  Hoyt,  &c.  v.  The  Wildfire,  3  Johns.  Rep.  510,  one  seaman  who  had  a 
common  interest  in  the  point  in  dispute,  was  admitted  as  a  witness.  S.  P.  Spurr 
et  al.  V.  Pearson,  1  Mason's  Rep.  104. 

The  master  ol  a  vessel,  by  whom  stores  had  been  purchased,  and  against  whom 
an  action  was  depending  for  the  price,  was  ruled  to  be  a  competent  witness  to  prove 
,  the  sale  and  delivery,  in  an  action  against  the  owner  of  the  vessel.  M'Indoe  v.  LunX, 

1  Brovine's  Rep.  85. 

In  a  suit  for  wages  in  the  Admiralty  Court,  by  a  seaman  against  the  owners  of  a 
vessel,  the  captain  is  not  a  coi'ipetent  witness  for  the  owners.  JoTies  v.  The  Phctnix, 
1  Peters'  Adm.  Decisions,  201,  Mahne  v.  The  Mary,  ibid.  139.  Atkyns  v.  Bur- 
rows, ibid.  244. 

So  the  master  of  a  vessel,  who  had  discharged  his  mate  in  a  foreign  port,  is  not  a 
competent  witness  to  prove  the  improper  conduct  of  the  mate,  in  an  action  for 
wages,  brought  by  the  mate  against  the  owners,  without  a  lelease  from  the  owners. 
Galloway  v.  Morris  et  al.  3  Feates'  Rep.  445. 

Quere,  Whether  a  release  from  the  owners  of  a  vessel,  to  their  captain,  to  make 
him  a  competent  witness,  must  not  be  se.iled  and  delivered  by  all  the  owners,  ibid. 

The  commander  of  a  public  armed  vessel,  which  has  captured  a  prize,  is  a  good 
witness  in  an  action  b_v  a  seaman  against  the  prize  agent  to  reduce  the  plaintiff's  share 
of  prize  money.  Murray  v.  lf'ilxon,l  Binn.  Rep.  531. 

In  an  action  against  the  owm  r  of  a  vessel,  for  unskilful  stowage  of  a  cargo,  by  the 
inarin'-rs,  the  master  and  maritiers  are  competent  witnesses  for  the  owner.  A>^nold 
V.  Anderson  et  al.  2  Yeates'  Rep.  93. 

PARTIES  TO  PROMISSORY  NOTES,  &c. 

In  an  action  by  an  endorsee  against  the  drawer,  the  endorser  is  not  a  competent 
witness  to  prove  the  hand  writing  of  the  drawer,  without  a  release,  or  its  equivalen' 


WITNESSES.  gig 

the  event  of  the  suit ;  or  unless  the  verdict  to  be  obtained  by  his  ch.  iii.  s.  3. 
evidence,  or  given  against  it,  will  be  evidence  for  or  against  him ^^°^''*' I'ule 

— a  discharge  from  liability  on  the  enilorseinent.  Barnes  v.  Ball,  I  JMass.  Hep.  73. 
Hice  V.  Stearns,  3  Do.  225. 

The  ru!'-  Ini<l  down  in  Walton  v.  Shelly,  1  Term.  Rep.  300,  seems  to  have  been 
adopted  in  the  If.  States. 

In  jyTassucliusetts  Aw\  J^Tew  York,  A  \t2iViy  io  a  negotiable  instrument,  which  he 
has  mailf  or  er;dorsed,  is  not  a  competent  witness  to  impeach  its  validity,  by  prov- 
ing it  originally  void.  Warren  v.  JMerri/,  3  Jt'Iuss.  Rep.  27.  Parker  v.  Lovejoy, 
ibid.  565.  Churchill  V.  Suter,iDo.  156.  Barker  y.  Prentiss,  6  Bo.  i30.  Widgely 
V.  JUiinroe  et  al.  ibid.ii9.  Jones  \.  Coolridge,7  Do,  199.  Manning  exr.y.  Wheat- 
la7id,  iO  Do.  502. 

In  JVew  York,  Winton  v.  Saidler,  3  Johns.  Cas.  185.  Wilkie  v.  Roosevelt,  ibid. 
206.   Coleman  v.  Wise  et  al.  2  Johns,  Rep.  165.    Skilding  v.  Warren,  15  Do-  270. 

But  this  rule  applies  exclusively  to  negotiable  instruments.  Tlie  Inhabitants  of 
Worcester  v.  Eaton,  11  Mass.  Rep.  368.  Lokeiv.  Haynes,ibid.  498.  Pleasants  v- 
Pemberton,  2  Ball.  Rep.  196.  S.  C.  1  Yeates'  Rep.  202.  Baring  v.  Shippen,  2 
_B2>in.  .Re/).  165.  M^Ferr-an  v.  Poiuers,  1  (Serg-.  £if  i?.  i?e/>.  102.  Croft  v.  Arther 
et  al.  3  Dessaus.  Ch,  Rep.  223. 

And  to  those  negotiable  papers  which  have  been  actually  negotiated  in  the  usual 
course  of  business.  Blagg  y .  Phanix  Ins.  Co,  C.  C.  April,  1811,  JW.  S  Rep. 
Bairdy.  Cochran  et  al.  4  Serg.  &  R.  Rep.  399.    Hepburn  v.  Cassel,  6  Do.  113.        f 

It  does  not  apply  to  a  party  to  a  deed  of  land,  who  is  not  interested,  to  prove  the 
deed  fraudulent  and  void.  ibid.  Hill  v.  Payson  et  al.  3  Do.  559. 

Nor  does  it  extend  to  the  endorsement  of  bills  of  lading.  Brown  et  al.  v.  Babcock 
et  al.  3  Mass.  Rep.  29.  Hill  y^  Payson  et  al.  ibid  559. 

It  is  competent  for  an  administrator,  in  an  action  against  him,  by  the  administrator 
of  the  promisee  of  a  negotiable  note  made  by  his  intestate,  to  prove  such  note  to 
have  been  given  upon  a  usurious  consideration.  Fox  et  al.  adms.  v.  Whitney  adm. 
16  Mass.  Rep.  118.  Packard  y.  Richardson  et  al.  17  Mass.  Rep.  122. 

In  an  action  by  the  endorsee  against  the  maker  of  a  negotiable  note,  the  en  Jorser 
is  not  a  competent  witness  to  prove  usury  in  the  transfer  of  the  note  by  him.  Man- 
ning exr.y.  Wheatland,  10  Mass.  Rep.  502. 

But  a  party  may  be  a  witness,  when  disinterested,  to  prove  any  facts,  subsequent 
to  the  due  execution  of  the  note,  which  destroys  the  title  of  the  holder.  Warren  v. 
Merry,  3  Mass.  Rep.  27.  Barker  v.  Prentiss,  6  Do.  430.  Parker  v.  Hanson, 
7  Do  470.  Fitch  v.  Hillet  al  11  Do.  286. 

\n  JVev)  York,  Baker  \.  Ai^old,\  Caines^  Rep.  258.  Woodhully.  Holmes,  10 
Do.  iS^.  Manny.  Sioann,\^  Do.  910.  Hulby  v.  Brown,  16  Do.  70.  Myers  v. 
Palmer,  \SDo.l67. 

In  Connecticut,  Webb  v.  Danforth,  1  Day''s  Rep.  SOI. 

In  Pennsylvania  he  cannot  be  a  witness  to  prove  there  was  no  consideration  fot 
it.  Stille  v.  Lynch,  2  Dall.  Rep.  194.  Et  vide  Allen  v.  Holkim,  1  Day^s  Rep.  17, 
Bearing  v.  Ruder,  I  Heti.  &  Munf.  Rep  175. 

In  an  action  by  ihe  eiidorsee  agaiust  the  drawer  oi  a  note,  the  endorser  is  not  a  com- 
petent witness,  without  a  release  trom  the  endorsee.  Barnes  y.  Ball,  1  Mass,  Rep. 
73.  Rice  V.  Stearns,  3  Do.  225. 

In  an  action  by  an  endorsee  against  an  endorser,  the  maker,  a  certificated  bank- 
rupt, under  a  commission  issued  since  the  making  of  the  note,  and  released  by  the 
endorser,  is  a  competent  witness  to  prove  thai  he  has  paid  the  note  to  the  plaintiff. 
Warren  y.  Merry,  3  Mass  Rep.  27.  Et  vi<le  Pdrce  v.  Butler,  14  Do.  303. 

In  an  action  by  the  endorsee  against  the  drawer,  the  endorser  {y/hn  was  the  payee) 


1  T.  R.  163. 


2i^  WITNESSES. 

Ch.  m.  s.  3.  in  another  action  in  which  he  may  afterwards  be  a  party .(?) 
General  Rule,  j^^^  smaller  degree  of  interest,  as  the  possibility  that  he  may  be 
liable  to  an  action  in  a  certain  event,  or  that  standing  in  a  simi- 
lar situation  with  the  party  by  whom  he  is  called,  the  decision 
in  that  cause,  may,  by  possibility,  influence  the  minds  of  the 
jury  in  his  own,  or  the  like ;  though  it  furnishes  a  strong  argu- 
ment against  his  credibility,  does  not  destroy  his  competency. 

is  a  competent  witness  to  prove  that  the  endorsement  was  made  in  trust  for  himself, 
without  any  recourse  to  himself,    barker  v.  Prentiss,  6  JMass.  Rep.  430. 

"The  payee  of  a  note,  who  has  endorsed  it,  with  a  saving  of  his  own  liability,  is  a 
competent  witness  to  prove  an  alteration  of  the  note  sioce  its  execution.  Parker  v. 
Hanson,  7  Mass  Rep.  470. 

The  drawer  of  a  bill  of  exchange,  is  not  a  competent  witness  to  prove  its  payment 
or  acceptance.  Huntingdon  v.  CliampUn,  Kirb.  Rep.  166. 

Quere,  Whether  the  draiver  of  a  bill  of  exchange  be  a  competent  witness  for  the 
endorser,  in  an  action  against  him.  Wikon  v.  Lenox,  I  Crunches  Rep.  194. 

So  a  dvatuer  is  a  competent  witness  to  prove  that  at  the  time  of  drawing  the  bill 
he  communicated  certain  conditions  and  restrictions  as  to  his  right  to  draw  the  bill. 
!Storer  v.  Logan,  9  Mass.  Rep.  55. 

An  endorser  is  a  competent  witness  in  an  action  by  the  endorsee  against  the  maker 
to  prove  that  the  note  was  after  the  endorsement,  fraudulently  put  into  circulation. 
WoodhuUv.  ffolmee,  10  Johns.  Rep.  231.  Et  \]de  Skilding  et  id.  v.  Warren,  15 
Do.  170.  Powell  y.  Waters,  17  Do.  176.  Tuthill  y.  Davis,  20  Bo.  2^5.  Owen  v. 
Mann,  2  Day^s  Rep.  399. 

In  an  action  by  the  endorsee  against  ihefrst  endorser,  the  plaintiff  offered  an  in- 
termediate endorser,  as  a  witness,  and  to  render  him  competent,  his  endorsement 
was  proposed  to  be  struck  off  the  first  and  third  sets  of  the  bills,  the  second  being 
lost,  yet  as  that  set  might  be  in  the  hands  of  a  bonajide  purchaser,  the  Court  held  he 
would  still  be  an  incompetent  witness.  Sleinnetz  et  at.  v.  Ciurey,  1  DalL  Rep.  270. 
— ^Am.  Ed. 

(r)  In  an  action  upon  a  bond  for  the  liberties  of  the  prison  yard,  the  Sheriff  or 
goaler  is  a  competent  witness  to  prove  that  the  creditor  assented  to  the  debtor's  li- 
beration, as  the  verdict  in  this  case  cannot  be  given  in  evidence,  in  an  action  against 
the  witness,  for  the  debtor's  escape.  Bndge  v.  M'Lane,  2  Mass.  Rep.  520. 

In  Massachusetts,  the  grantor  of  land  with  warranty,  is  a  competent  witness  for 
(he  grantee,  in  an  action  brought  by  him  for  the  land,  against  one  who  does  not 
claim  to  hold  under  the  same  grantor ;  the  verdict  in  the  present  sail  could  not 
be  given  in  evidence,  in  an  action  brought  against  him  on  a  breach  of  covenant. 
Twambly  v.  Henley,  4  JMass.  Rep.  441. 

In  Connecticut  he  is  inadmissible.  Abby  v.  Goodrich,  3  Day^s  Rep.  4S3. 

Proprietors  admittp'i  to  prove  the  title  to  lands,  to  which,  for  a  valuable  conside- 
ration, they  had  quit  claimed,  though  it  was  objected,  if  the  defendant's  should  fail 
they  would  be  entitled  to  recover  of  the  proprietors.  Lay  v.  Hayden,  2  Root's 
Rep.  Sir. 

A  person  acknowledging  that  he  thought  himself  interested  in  the  event  of  the 
suit,  is  not  a  competent  witness,  though  in  fact  not  interested.  Richardson's  exrs. 
V.  Hunt,  2  Mint/.  Rep.  148. 

Sed  contra,  Fernsler  v.  Carlin,  3  Serg.  &  R.  Rep.  130.  Long  v.  BaiUie,  4  Do. 
226. 

A  witness  is  competent,  though  another  swore  he  heard  him  confess,  some  years 


WITNESSES, 


S15 


Thus,  in  one  case,  where  A.  B.  and  C.  having,  in  a  joint  deposi-  ch.  in.  s.  3. 
tion  in  Chancery,  sworn  to  the  same  fact,  the  party  injured  ^^*^"^''®'^"'^- 
brought  three  several  actions  on  the  Statute  of  Eliz.  for  perjury;  ' 

and  in  another,  vi^here  several  persons  having  svi'orn  to  the  same  Downs' 2^ 
fact,  were  severally  indicted;  it  was  permitted  to  one  to  give  ^""-^br. 
evidence,  on  the  trials  of  the  others  in  their  favour ;  for  until  Montague, 
conviction,  he  could  not  be  rejected  as  infamous;  and  he  was '^"^^'' ^°''^''^" 

"'  cue's  Kep. 

247. 

before,  that  he  would  be  a  great  loser  if  the  plaintiff  miscarried  in  the  suit.     Les.  of 
Pollock  V.  Gilleapie  et  al.  '2  Yeates' Rep.  129. 

Supposing  the  competency  of  a  witness  to  depend  upon  his  own  opinion  of  his  in- 
terest, it  is  only  his  opinion  at  the  time  of  taking  the  oath  that  can  be  consitlered. 
Therefore,  proof  that  a  witness,  offered  by  the  defendant,  had  said,  about  two  years 
before  the  trial,  "  that  every  cent  which  should  be  recovered  in  the  action,  would 
be  deducted  out  of  the  estate  of  his  wife,"  does  not  render  him  incompetent.  Fenis- 
kr  V.  Curlin,  3  Serg.  &  R.  Rep.  130. 

GRANTOR  IN  A  DEED,  &c. 

In  J\:'etv  York,  the  grantor  in  a  warranty  deed  is  incompetent  on  the  ground  ot 
interest.  Jackson  ex.  d,  Cald-zvell  v.  Halleiiback,  2  Johns.  Rep.  39i.  Swift  v.  Dean, 
6  Do.  523. 

So  in  Virginia.  Moor  v,  Campbell,  I  Munf.  Rep.  600.  Bed  vide  Rosa  v.  JVo"- 
-vell,  3  Munf.  Rep.  170. 

But  where  he  has  been  released  he  is.  Jackson  ex.  d.  Bond  et  al.  v.  Root,  18 
Johis.  Rep.  60. 

But  he  is  a  competent  witness  in  an  action  oftrespass  by  the  grantee,  although  the 
defendant  justifies  under  a  right  of  freehold.  Vati  J\iiiys  v.  Terhune,  3  Johrnt. 
Cas.  82. 

The  widow  of  one  deceased,  is  a  cornpetent  witness  in  a  suit  concerning  her  hus- 
band's lands.  Jackson  ex.  d.  Grisir;lii  v.  Bard,  4  Johns.  Rep.  2.30.  Jackson  ex.  d. 

Van  Deusen  v.  Van  Deusen,  5  Johns.  Rep.  144.    Den  ex.  d.  Beatty  v.  —— 

Tayl.  Rep.  9- 

Qwere,  in  Pennfylvama.  Les.  of  Sweitzer  v.  Mease  et  al.  6  Binn.  Rep.  500. 

In  Pennsylvania,  a  grantor  w^lo  has  warranted  merely  against  persons  claiming 
under  himself,  is  a  competent  witness  for  the  grantee  against  a  party  not  claiming 
under  the  witness,  ies.  ofGraiz  v  E^valt,  2  Binn.  Rep.  95.  Ijes.  of  Cain  v.  Kin- 
derson,  ibid.  108.  Lev.  of  Henry  v.  Morgan,  ibid.  500.  Les.  of  Siveitzer  v.  Mease 
et  al.  6  Do.  500.  Johnson  v.  Eckart,  3  Yeates'  Rep.  427.  Les.  of  Shields  y.  Bncha- 
nan  et  al.  2  Do.  219. 

But  one  with  general  warranty,  is  a  good  witness  to  establish  a  title  in  opposition 
to  that  of  his  vendee.   iVorket  al.  v.  Mhclay,  2  Serg.  ^  It.  Rep.  415. 

So  where  one  has  sold  land  wi;h  warranty  against  the  plaintiff",  he  is  a  good  witness 
for  him,  because  he  swears  against  his  own  interest.  Salmon  et  al.  t.  Ranee,  3  Serg 
&  R.  Rep.  315. 

So  where  there  is  neither  covenaiit  of  title  or  warranty.  Dorseyv.  Jachman, 
1  Serg.  SJ  R.  Rep.  42.     Et  vide  hwby  v.  Grcenslate,  1  Stra?ige\i  Rep.  445. 

A  vendor  of  cattlf ,  wlio  had  agre::d  to  sell  them  to  A.  for  cash,  but  on  his  failing- 
to  comply  with  the  terms,  soUi  t!ie.»  to  B.  was  ruled  to  be  a  competent  witness  in 
an  action  of  replevin  for  the  cattle,  brought  by  A.  against  B.  Miller  y.  Little,  1 
Yeates'  Rep.  28. 

One  who  has  conveyed  land  subject  to  a  right  of  way,  with  general  warranty,  is  a 
'ompetent  witness  for  the  defendant,  in  an  action  for  disturbing  the  right,  to  prove 


g^g  WITNESSES. 

Ch  III.  s.  3.  not  directly  interested,  inasmuch  as  the  acquittal  of  the  others 
Interest,     yvould  be  no  evidence  for  him.     So  a  woman,  whose  husband 
~~"~~~~"  was  under  sentence  of  death,  was  held  to  be  a  competent  wit- 
Leach!cro!    "ess  on  an  indictment  against  others  for  the  same  offence,  though 
Cas.  151.        she  confessed  that  she  had  hopes  the  conviction  of  the  others 
might  procure  a  pardon  for  her  husband  ;  for  such  pardon  was 
not  a  necessary  consequence  of  that  conviction.(s) 
Parties  injur-      Many  cases  have  arisen,  and  many  contradictory  decisions 
ed  ID  criminal  g^j.g  ^^  be  found  in  the  books,  on  the  question,  how  far  persons 
who  have  been  defrauded  of  securities,  or  injured  by  a  perjury, 
or  other  crime,  can  be  witnesses  in  prosecutions  for  those  of- 
fences, the  event  of  which  might  possibly  exonerate  them  from, 
the  obligation  they  are  charged  to  have  entered  into,  or  restore 
to  them  money  which  they  have  been  obliged  to  pay  ?     But  the 
general  principle  now  established  is,  that  "  the  question  in  a 
criminal  prosecution,  or  penal  action,  being  the  same  with  that 
in  a  civil  cause  in  which  the  witness  is  interested,  goes  general- 
ly to  the  credit,  unless  the  judgment,  in  the  prosecution  where 
he  is  a  witness,  can  be  given  in  evidence  in  the  cause  wherein 
Ante, p.  78.   he  is  interested. (<)*    And  if,  as  I  have  elsewhere  endeavoured 

an  agreement  for  the  removal  of  the  road  on  a  certain  event.  Lentz  v.  Stroh,6  Serg. 
i^  R  Rep.  34.— Am.  Eu. 

(s)  As  in  a  criminal  case  a  particeps  criminis  is  admitted  as  a  witness,  so  in  a  civil 
case  a  particeps Jraudis  may  be.  Churcldll  v.  Suter,  4  jyiass.  Rep.  156.  Bean  v. 
Bean,  12  Do.  20.— Am.  Ed. 

{t)  The  person  who  is  entitlid  to  a  restitution  of  possession,  in  case  of  a  convictioa 
oi forcible  entry,  c3.m\oi  be  a  witness  to  support  the  indictment.  State  y.  Fellows, 
2  Hayia.  Rep.  340.    Et  vide  State  v.  Hamilton,ibid.  288.— Am.  Ed. 

•  The  cases  on  this  point  are  so  contradictory,  that  it  is  impossible  to  reconcile 
them.  In  IVcUfs  case.  Hard.  331,  it  is  laid  down  as  a  general  rule,  that  in  the  case 
of  perjury,  he  who  is  injured  by  the  perjury,  cannot  be  a  witness  on  an  indictment 
for  it ;  and  in  the  case  of  Rex  v.  fVhiting,  1  Salk.  283,  it  was  held,  that  a  woman 
who  had  been  induced  by  the  fraud  of  the  defendant,  (o  sign  a  note  of  hand,  could 
not  be  a  witness  against  him,  because  his  conviction  wooM  influence  the  jury  on  the 
trial  of  an  action  on  the  note,  though  the  record  could  not  be  given  in  evidence.  la 
the  case  oi  x)^e  King  v .  EUis ,  2  Stra,  1104,  a  detendMnt  in  an  ejectment,  against 
whom  the  verdict  was  gi'^n,  was  held  not  to  be  a  witness  on  an  indictment  for  per- 
jury committed  on  the  trial  of  such  ejectment :  and  in  the  case  of  the  King  v. 
JVunez,  2  Stra.  1043,  it  was  deterramed,  that  a  person  who  had  filed  an  injunction 
bill  in  the  Exchequer,  to  stay  proceedings  in  an  action  broug'ht  on  i  promissory 
note,  could  not  be  a  witness  to  prove  perjury  committed  in  an  answer  to  that  bill. 
Paris's  case  (1  Fentr.  49,  and  1  Sid.  431 )  is  directly  contrary  to  the  King  v.  Whit' 
ing;  the  only  difference  between  the  two  cases  is,  that  one  information  was  for 
fraudulently  procuring  a  warrant  of  attorney  to  confess  judgment,  the  other  for  so 
procuring  a  promissory  note.  And  in  the  JB»i§*  v.  JVloise,  1  Stra.  595,  which  was 
an  indictmeDt  for  tearing  a  note,  the  payee  of  the  note  was  admitted  to  prove  the 


WITNESSES.  2iy 

to  shew,  the  verdict  on  an  indictment  on  the  trial  of  which  a  Ch.  lu.  s.  3. 
man  is  examined  as  a  witness,  can  in  no   case  be  evidence  for^,j"j'^"^!|J"^'"^j 
him  in  a  civil  cause  ;  it  will  follow,  that  in  every  case,  except  p'osecuiions. 
those  which  by  inveterate  practice  may  be  considered  as  form-    —  '■' ' 

case.  The  case  of  the  King  v.  Wldting  was  doubled  by  Lord  Hardwicke  in  the 
King  V.  Bray,  Cas.  temp.  Hard.  35&  ;  and  it,  together  with  the  cases  of  the  King 
V.  JVunez  and  ihe  King  v.  Ellis,  are  said  by  Lord  MAVsFruLi)  in  4  Burr.  2255,  to 
have  been  overruled  by  Lord  Chief  Justice  Lkk,  in  the  case  of  tlii'  King  v.  Brough- 
ton,  2  Stra.  1229  ;  and  the  rule  laid  down  by  Lord  Mansfield,  in  tiiat  book,  is,  as 
above  slated,  "  that  the  question  in  a  criminal  [jrosecutinn,  being  the  same  with  a 
civil  cause  in  wliich  the  witness  is  interested,  goe%  gtnerally  to  the  credit;  unless  the 
judgment  in  the  prosecution,  -where  he  is  a  witness,  can  be  given  in  evidence  in  the 
cause -where  he  is  interested  "  A  dislinctioti,  howevi-r,  may  be  maile  between  the 
cases  of  the  King  v.  fV/iiiing,  &cc  and  the  case  of  the  King  v.  Broughton.  In  the 
first  three  cases,  the  pei-sou  who  was  cilled  as  a  witness,  might  eventually  have 
been  benefited,  because  in  the  King  v  Whiting ,  \h.<i  \\i\i&  was  a  good  instrument 
till  the  t'.efendant  was  convicted.  In  ihe  King  v.  Ellis,  the  defendant  in  the  eject- 
ment failed  at  the  trial,  and  he  might  ho;ie  to  obtain  a  verdict  in  another  eject- 
ment, if  he  succeeded  in  convicting  ihe  defendant  on  the  indictment  for  perjury; 
and  in  the  King  v.  JVuiiez,  the  suit  in  the  Exchequer  was  still  pending.  In  the 
case  of  ihc  King  v.  Broughton,  the  suit  in  Chancery  was  ended,  and  ended  in  the 
manner  most  agr-  eable  to  th  interest  of  the  witness  ;  for  the  Lord  Chancellor,  not 
believing  Broughton,  the  defendant  in  that  indictment,  had  decreed  for  the  witness, 
so  that  the  witness  could  not  have  even  (he  hope  ot  benefiting  himself  by  convicting 
^Broughton,  The  following  case  clearly  establishes  the  position  laid  down  by  Lord 
Mansfikld,  in  the  case  of  Abrahams  v.  Bunn,  but  at  the  same  time  as  clearly 
overturns  the  case  of  Rex  v.  Whiting,  and  cannot  be  distinguished  from  it. — It  was 
the  ease  of  Bartlet  v.  Piekersgill,  (since  reported,  Cox's  Cases,  15)  and  is  citid  by 
Lord  Mansfield,  4  Burr.  2255,  as  follows  :  "  The  defendant  bought  an  estate  for 
the  plaintiff.  There  was  no  writing,  nor  was  any  part  of  thr  money  paid  by  the 
plaintiff.  The  defendant  articled  in  his  own  name,  and  refused  to  convty,  and  by 
his  answer  denieil  any  ti'ust ;  pai  ol  evidence  was  rejected,  and  the  bill  was  dismiss^ 
cd.  The  defendant  was  afterwards  indicted  for  perjury,  tried  at  York,  and  con- 
victed  on  the  evidence  of  the  plaintiff,  confirmed  by  circumstances,  and  the  defen- 
dant's cleclarations.  The  plaintiff"  then  petitioned  for  a  supplemental  bill  in  the  na- 
ture of  a  hill  of  review  slating  the  conviction.  But  the  petition  was  dismissed,  be- 
cattse  tlte  conviction  was  not  evidence.'"  In  the  case  of  Abrahams  v.  Bunn,  wbove 
mentioned,  the  borrower  of  money  was  held  a  good  witness  to  prove  the  whole 
case  in  an  action  for  usury  against  the  lender,  and  the  authority  of  this  case  was  fully 
recognised  in  the  lat'-  case  of  Smith  v.  Prager.  But  in  an  action  iigainst  the  as- 
signee of  a  bankrupt,  tor  taking  usurious  interest  on  a  loan  to  the  bankrupt,  he  not 
having  obtained  his  cerlificale,  nor  paid  the  money,  was  not  permitted  to  prove  the 
usury.  Martin  v.  Drayton,  2  T.  Rep.  496.  See  also  the  King  v.  Daiby,  Peak, 
JV.  P.  12,  where  Lord  Kenyon  njected  the  testimony  of  a  person  who  had  been 
injured  by  a  perjury  in  J<n  indictment  for  that  offence.  This  question  was  finally 
laid  at  rest  in  the  Kifig  v.  Boston,  4  East  572,  where  the  defendant  having  been 
convicted  of  peijury,  in  an  answer  to  an  injunction  bill,  and  the  plaintiff  in  the  bdl, 
and  his  wife,  having  (after  objection)  been  admitted  as  witnesses  on  the  (rial,  the 
Court  ot  King's  Bench  decided  that  they  were  cooipetent  witnesses:  because  in  no 
case  where  a  person  has  been  ex  <mined  on  the  trial  uf  an  indictment,  can  the  verdict 
on  that  inilictment  be  used  for  him.  They  expressly  referred  to  the  CMse  of  Bart- 
kt  V.  Piekersgill,  and  recognised  its  authority.    See  also  the  cases  cited  ante,  p.  71. 

F  f 


g£g  WITNESSES. 

Ch.  111.  s.  3.  ing  exceptions  to  this  general  rule,  the  party  injured  is  a  com 

Parties  injur  ^^j^.N 

ed  in  crimiDal  r^  v  _/  _  ^  _ 

prosecutions        But  thoiigh  this  is  the  general  rule,  an  exception  to  it  seems 

—————  to  be  established  in  the  case  of  indictments  for  forgery  ;  for  it 
has  in  many  cases  been  decided,  that  a  person,  whose  hand-wri- 
ting has  been  forged  to  an  instrument,  whereby,  if  good,  he 
would  be  charged  with  a  sum  of  money ;  or  one  who  has  paid 
money  in  consequence  of  such  forgery,  cannot  be  a  witness  on 
the  indictment  for  the  purpose  of  proving  the  forgery,  though  hc- 

Hiinter  v.      ^^^^^  ^^  facts  quite  collateral  to  it ;  or  in  civil   cases  where  the 

4B.&A.209.the  same  question  arises. (a:)* 


[7i)  The  question  in  a  criminal  prosecution,  being  the  same  with  a  civil  cause,  in 
which  the  witness  is  interested,  goes  generally  to  his  credit,  unless  the  judgment  in 
the  prosecution  can  be  given  in  evidence  in  the  cause  where  he  is  interested.  State 
V.  Jf asset,  Tayl.  Rep.  55. 

On  an  indictment  for  usary,  the  borrower  of  the  money  is  a  competent  witness  for 
the  Commonwealth,  if  he  is  not  entitled  to  a  moiety  of  the  penalty  as  informer,  not- 
withstanding he  has  never  repaid  the  money  borrowed.  CommorvweaUh  v.  Frost, 
5  Mass.  Sep.  53. — Am.  Ed. 

(a-)  In  Vermont,  the  person  whose  name  is  alleged  to  be  forged,  cannot  be  ad- 
mitted as  a  witness  tor  the  prosecution,  in  an  indictment  for  the  same.  State  v.  .i. 
W.  1  Tyl.  Rep.  260. 

In  Connecticut,  the  party  injured  cannot  be  a  witness  to  prove  the  forgery.  State 
V.  Bninson,  1  Booths  Hep.  307.     State  v.  Blodget,ibid.  534. 

Sed  quere.  Whether  the  rule  is  not  altered  by  later  decisions. — Ed  . 

But  the  hand  writing  of  the  person,  in  whose  name  the  forgery  is  alleged  to  hare 
been  committed,  will  be  allowed  to  go  to  the  jury.  State  v.  JVettleton,  ibid.  308. 

And  the  person  to  whom  the  forged  instrument  was  passed,  is  a  good  witness, 
ibid. 

The  person  whose  name  was  forged,  was  released  by  the  bank,  who  paid  the 
money,  and  held  to  be  a  competent  witness.  The  People  v.  Howell,  4  Johns.  Rep. 
296. 

In  JUassachiisetts,  it  has  been  held  that  a  party  by  whom  an  instrument  purported 
to  be  made,  was  not  competent  to  prove  it  forged,  unless  the  instrument  be  produced 
on  tbe  trial.    Commoniuealth  v.  Hutchinson,  1  J\1ass.  Rep.  7. 

In  the  case  of  the  Commomvealth  v.  Snell,  3  Do.  32,  where  the  iustrumentalleged 
to  have  been  forged  was  secreted,  to  protect  the  offender,  the  person  whose  name 
is  charged  to  have  been  forged,  and  who  had  seen  and  copied  the  instrument,  is  a 
competent  witness  to  prove  it  forged;  and  the  production  of  the  instrument  itseU 
will  be  dispensed  with. 

But  in  Commonwealth  v.  Waite,  5  Do.  261,  the  Court  said,  as  the  person  whose 
receipt  was  forged,  could  neither  gsiin  nor  loose  by  the  event  of  the  trial,  he  was  a 
comiietent  witness.  From  the  report  of  the  case,  the  receipt  did  not  appear  on  the 
trial. 

In  Pennsylvania,  the  party  injured  is  a  competent  witness.  Respublica  v.  Keat- 
ing,\  Ball.  Rep.  110.  Ibid.  v.  Ross,  2  Do.  2.39.  S.  C  2  Yeates'  Rep.  1.  Ibid,  v, 
Wright,  1  Do.  401.  Ibid.  v.  Farrell,  Addis.  Rep.  246.— Am.  Eo. 

•  See  the  several  cases  on  this  head,  collected  in  the  Digest,  at  the  end  of  this  sec- 
tion, letter  (D.) 


WITNESSES.  g^g 

III  cases  where  the  party  injured  cannot  by  possibility  derive  ch.m.  s.  3. 
any  benefit  from  the  verdict  in  the  prosecution,  as  in  indict-^' '"*''''«'*'"» 
ments  for  assaults,  and  the  like  personal  injury,  his  competency  ness^s  of  ue- 
has  never  been  doubted.(?/)(  1)  ""^^'^y- 

From  what  has  been  already  said,  it  may  be  taken  as  a  gene-  ~~" 

ral  rule,  that  a  party  in  a  cause  cannot  be  examined  as  a  wit-ej,se  Hard, 
ness,  for  he  is  in  the  highest  degree  interested  in  the  event  of''^^- 
it  ;*  and  though  he  be  barely  trustee  for  another,  he  has  still  an 
interest  sufficient  to  render  him  incompetent,  for  he  is  personal-  itcx  v.  St. 
ly  answerable  in  the  first  instance  for  the  costs  of  the  suit,  and,^^"i^  Magda- 
the  chance  he  may  have  of  indemnity  from  the  person  for  whom  sey,  3  East.  7. 
he  acts,  does  not  remove  the  interest  which  the  certain  liability 
creates  in  him.(z)     But  where  a  man  is  not,  in  point  of  fact,  at 
all  interested,  he  may  be  examined  ;  as  where  members  of  a  cha-  Weiier  w. 
ritable  institution  are  defendants  in  their  corporate  cAarac/er,  n"'*^'',?*"'*°^ 

'  '  r  ounnimg 

there  is  no  objection  to  an  individual  member  being  examined  Hosp.  Peak, 
as  a  witness  for  the  corporation;  because  in  this  case  he  is  giv-^"*^*  ^^'^' 
ing  evidence  for  the  public  body  only,  and  cannot  be  in  any  man- 
ner affected  by  the  verdict;  for  the  <^osfs  ''.ann»t  be  levied  oa 
him  personally,  but  can  only  be  recovered  from  the  funds  of  the 
corporation. 


(^)  Quere,  Whether  in  every  criminal  case,  a  witness  who  is  not  interested  in 
the  event  of  the  cause,  is  not  a  competent  witness.  The  People  v.  HoiveU,  4  Johns. 
Hep.  296. 

On  an  indictment  for  a  conspiracy,  in  inveigling  a  young  girl  from  her  mother's 
house,  and  she  being  intoxicated,  procuring  the  marriaii;e  ceieiuony  to  be  recited 
between  her  and  one  of  the  defendaiits,  the  girl  is  a  competent  witness  to  prove  the 
facts.  Respublica  v.  Hevice  et  al.  2  Yeates'  Rep.  1 14. 

One  party  cannot  use  as  evidence  his  own  deposition  taken  in  another  action,  by 
the  other  party ;  for  it  cannot  be  inferred  from  the  takini^  the  deposition,  thm  lie 
admits  the  statement  contained  in  it.  Hovey  v.  Hovey,^  Mass.  Rep.  216. — Am.  Ed. 

•  But  where  one  party  has  agreed  to  take  the  affidavit  of  the  other  as  to  a  parti- 
cular fact,  and  such  affidavit  has  been  made  accordingly,  this  is  to  be  t;)ken,  for  the 
purpose  of  the  cause,  as  conclusive  evidence  of  the  fact  so  sworn  to,  vide  Button  v. 
Prettiman,  Sir  T.  Raym  153;  aliter,  if  the  affidavit  be  only  engrossed  and  not 
sworn,  Stevens  and  others  v.  Walker,  Peuk.  JV*.  P.  187.  Vide  ante  21,  note  (*.) 
And  in  a  late  case,  where  one  of  the  parties  had  by  consent  been  pxaiuined  at  Nisi 
Prius,  the  Court  of  Common  Pleas  refused  to  set  aside  the  verdict.  JVorden  v. 
Tvdbill  et  al.  1  Taunt.  378.  (But  in  JVeiu  York,  it  was  deeided  thiit  the  lessor  of 
the  plaintiff  in  ejectment  was  not  a  good  witness.  Jackson  ex  d.  Goodrich  et  al  v.  Off- 
den  et  al.  4  Johns.  Ri:p   140. — Am.  Ed.) 

(z)  A  mi're  naked  trust -e,  is  a  competent  witness  in  a  cnnt'-oversy,  in  which  a 
creditor  set-ks  to  set  s-olde  ih  ■  I.-  d,  on  the  ground  of  fraud.  Harrey,  <Jc.  v.  Alex- 
ander, &c.  1  Randolph's  .Hep  219. 

A  mt-vi-  naked  (rusiee  without  interest,  is  a  competent  witness.  JUai7iY.  JVexoson, 
Antb.  J\r.  P.  11.— Am.  Ed. 


g2Q  WITNESSES. 

Ch.  m.s.  3.      So  in  questions  as  to  the  rights  or  immunities  ot  a  corpora- 
C*ai!sr&<r    ^^*'"^'  ^'i6  evidence  of  individuals  who  are  not  privately  interest- 
ed, though  members  of  the  city,  may  be  received  :  But  where 


Case  of  Cor-    Corporators,   as   such,  have  private  interests,  as  to  be  free  of 
puniiion  of      ^qJj    rights  of  common,  &c.  these  being  really  and  substantially 

Loiidriu,  *        .         ,  ,      r  ,1  -J  ^/    \ 

1  Vei.ir.  351.  interested  m  the  event  of  the  cause,  are  no  witnesses.^(a; 

Lord  Howard — ~ ~~ 

Hob'  9'i  *  For  the  instances  in  which  corporators  are  admitted  as  witnesses,  see  Digest  at 

S^nily  V.  the  end  of  this  section,  lelt'r  (A.) 

Custom-house  .  ,.      ,    .  j  •       , 

Offici  rs,  (a)  Where  a  corporation  are  parties,  or  immedmtely  interested  m   the  question. 

Skin.  174.        no  number  of  it  can  be  a  juror  op  witness.  Respublica  v.  Richards,  1  Yeates^  Rep. 
480.  J\iason  v.  Thatcher  et  al.  7  Mass.  Rep.  398. 

But  on  an  indictment  tor  casting  away  a  vessel,  to  the  prejudice  of  a  corporate 
body  who  had  und-Twritten  her,  a  stockholder  may  be  a  witness  for  the  prosecution' 
V.  States  y.  Johns,  C.  C  ./ipril,  1806.  .1/.  S  Rep.  S.  C. 'i  Hall.  Rep.  415. 

So  a  sli'ckh'-hler  in  an  incoiporaied  company,  plainliffin  the  suit,  was  admitted  as 
a  witness  to  inform  the  consciences  of  the  Court  as  to  a  collateral  fact.  Schuylkill 
JVavigation  Company  v.  Daffehach  et  al.  1  Yeates''  Rep.  367- 

An  inhabitant  of  a  city  is  not  a  competent  witness  in  support  of  a  prosecution, 
•wliere  the  penalty  enures  to  the  benefit  of  the  city.  Common-wealth  v.  Keighler, 
Supreme  Court,  1797,  M.  S. 

A  taxable  inhabitant  is  a  competent  witness  for  the  Commonwealth,  in  an  indict- 
ment tor  selling  spirituous  liquors  without  a  license  ;  but  one  who  has  actually  been 
assessed  or  rated,  is  not.    Commonwealth  v.  Baird,  4  Serg.  &  R.  Rep.  l4l. 

By  the  6th  sec.  of  the  Act  of  27th  Jan.  1819,  7  Reed's  Laws  Penn.  it  is  provided, 
that  no  person  shall  be  excluded  from  being  a  -ivitness,  arbitrator.  Judge,  or  juror, 
in  any  prosecution,  wider  that  or  any  other  penal  Act  of  Assembly,  by  reason  of  be- 
ing subject  to  the  payment  of  county  rates  or  levies  for  the  poor,  in  the  city  or 
county  of  Philadelphia. 

It  is  staled  ill  Sivift's  Evid.  57,  that  in  England  there  is  no  general  rule  adopted 
vhen  membei  s  of  corporations  shall  be  witnesses  in  actions  for  or  against  corpora- 
tions ;  but  that  ev^-ry  case  stands  on  its  own  circumstances. 

The  inhabitants  of  an  incorporated  society,  to  whom  property  is  devised,  for  the 
support  of  a  school,  are  competent  witnesses,  to  attest  the  will.  Corn-well  v.  Isham, 
1  Day's  Rep.  35. 

Where  a  corporation,  created  for  pious  and  charitable  uses,  were  made  the  resi- 
duary legatees  in  a  will,  its  members  were  received  as  witnesses,  on  the  question  of 
the  sanity  of  the  testator,  which  was  at  issue  between  the  executor  and  the  heir  at 
_         law.     JVason  v.  Thatcher  et  id.  7  Alass.  Rep.  398. 

The  mere  liability  to  be  rated  for  the  support  of  the  paor  of  tbe  town,  will  not 
render  such  a  person  an  incompetent  witness,  in  a  cause  in  which  the  town  is  inter- 
ested, as  to  the  maintenance  of  a  pauper.  Falls  v.  Belknap,  I  Johns.  Rep.  486. 

The  iiihabit:tnts  of  a  town  were  admitted  as  witnesses  in  a  case  in  which  they 
were  int<Tested,  on  the  g'ound  that  their  interest  was  a  corporate  one,  and  the 
transHCtion  being  in  said  town,  where  other  evidence  might  not  reasonably  be  ex- 
pected. Smith  V.  Barber,  1  Root's  Rep   '207. 

W  here  some  of  the  proprietors  of  the  common  land,  in  the  town  of  Stratford, 
were  to  prove  the  boumiaries,  the  Co?/r<  said,  that  members  of  a  corporation,  are 
admitted  to  testify  in  chscs  where  they  are  interested  from  necessity,  but  bounds 
are  of  public  notoriety,  and  msy  be  known  to  the  other  inhabitants  of  the  town,  as 
well  as  to  the  propiietors,  and  they  were  accordingly  rejected.  Skelton  v.  Tomlin- 
son,  2  Root's  Rep.  132. 


WITNESSES.  22i 

But  there  are  some  instances,  where  persons  substantially  in-  CH.  iir.  9.  3. 
terested,  and  even  parties  in  a  cause,  are  permitted  to  be  exa-    causT&c^ 
mined,  from  the  necessity  of  the  case,  and  absolute  impossibility  -. 
of  procuring  other  testimony. (/;} 

In  an  action  on  the  Statute  of  TVinton,  the  party  robbed  is  a 

Where  a  suit  was  carried  on  \t\  a  board  of  freeholilers,  who  in  tlieir  corporate  ca- 
pacily  had  advanced  uiont-y  lo  carry  il  on,  a  niemljer  of  the  board  was  held  a  com- 
petent wiiru'SS,  being  merely  liable  in  his  corporate  and  not  in  his  personal  capacity. 
Schank  v.  Stevenson,  1  Pen.  Rep  387. — Am.  Ed. 

(6)  Vide  ante,  for  Book.  Debts,  &c.  p.  30,  n. 

In  summary  inquiries,  such  as  questions  of  bail,  the  evidence  of  parties,  tliough 
interested  in  the  event  of  the  suit,  have  always  been  received.  Bank  of  Pennsyl- 
tania  v.  Hadfeg  et  al  3  Yeates'  Rep.  560. 

A  person  interested  in  the  qu<-stion,  may  be  admitted  to  prove  a  collateral  factj 
such  as  the  identity  of  blocks  taken  from  raai-ked  trees,  iri  a  question  of  survey. 
Les.  of  Coxe  v.  E-M7ig  etal.  4  Yeates'  Rep.  429.  Ei  vide  Davis  v.  Hampton,  2  Do. 
289. 

Il  is  the  universal  practice  in  Pennsylvania,  for  the  party  to  the  suit  to  prove  the 
service  of  notice  to  produce  papers,  and  lo  prove  notice  of  taking  of  di-positions. 
Jordan  v.  Cooper  et  al.  3  Serg.  &  R.  Rep.  564.  Doii£^lass's  les.  v.  Sanderson,  1 
Yeates'  Rep.  15.  S.  C.  2  DaU.  Rep.  116. 

The  judgment  of  a  Justice  reversed,  because  he  had  given  judgment  in  favour  of 
the  plaintiff,  founded  on  the  evidence  of  the  paity.  Sluirpe  v.  Thatcher,  9,  DaU. 
Rep.  77. 

A  plaintiff  is  a  good  witness  to  prove  the  service  of  a  notice  on  a  justice  of  the 
peace,  thirty  days  befort  process  issued,  under  the  Act  ot  IHi  .March,  1772, 1  Sm. 
Laxvs,  364.  Kidd  v.  Riddle,  2  Yeates'  Rep.  444. 

The  affidavit  of  the  landlord  of  the  defendant  in  ejectment,  was  admitted  to  prove 
the  absence  of  a  material  witness.  Hunter''s  les.  v.  Kennedy,  1  DaU.  Rep.  SI. 

So  the  plaintiff  is  a  witness  to  prove  that  a  material  witness  w;.s  unable  to  attend, 
by  reason  of  advanced  age  and  indisposition,  in  order  to  entitle  him  to  read  his  de- 
position. Les.  of  Morris  v.  Flora,  cited  2  DaU.  Rep.  117.  1  Yeates'  Ret).  16. 

So  his  affidavit  is  evidence, on  a  rulelo  shew  cause  of  action,  by  the  practice  of  our 
Courts  ;  but  it  cannot  be  received  on  the  argument  of  the  rule.  Hoar  v.  Mulvey, 
1  Binn.Rep.  145. 

In  JV'ew  JorA\  a  person  who  had  given  a  bond  of  indemnity  to  the  plaintiff  against 
the  costs  of  the  suit,  was  held  an  incompetent  witni'ss  to  prove  the  service  of  notice 
on  the  defendant  to  produce  certain  papers  at  the  trial.  Butler  v.  Warren,  1 1  Johns. 
Rep.  57. 

So  to  prove  the  death  of  a  subscribing  witness  to  a  deed,  to  let  in  proof  of  his  hand 
writing.  Douglass's  les.  v.  Sanderson,  1  Yeates'  Rep.  15.  S.  C.  2  DaU.  Rep.  116. 
Levan's  les.  v.  Zfa»t,  cited  1  Yeates'  Rep.  16. 

The  defendant  cannot  prove  a/)rosec7<ior,  it  must  be  proved  by  indifferent  wit- 
nesses.  The  King  v.  Lukens,  1  Dull.  Rep.  5. 

Nor  can  he  take  advantage  of  his  own  voluntary  affidavit.  JiJ'avigation  Company 
V.  CityofJVev)  Orleans,  Martin's  Orleans  T.  Rep.  24. 

So  to  prove  the  loss  of  a  bill  of  exchange,  in  an  action  against  the  acceptor,  its 
previous  existence  having  first  been  shewn  by  other  testimony.  JMeeker  et  al.  v . 
Jackson,  3  Yeates'  Rep.  442. 

Qitere,  Whether  in  an  action  against  an  innkeeper,  for  money  lost  in  his  house, 
the  plaintiff  is  a  competent  witness  to  prove  the  contents  of  a  bag,  delivered  to  be 
kept  for  him.  Sncider  v.  Gem,  1  Yeates'  Rep.  34. 


SS^  WITNESSES. 

Ch.  III.  s.  3.  witness.(c)*     And,  on  the  same  principle  of  necessity,  it  has  been 
^  holden,  that  persons,   who   become    interested  in  the   common 

Thou^^h  a  party  may  prove  ex  necessitate  the  loss  of  a  deed,  yet  lie  cannot  prove 
its  contents.  Seekivright  ex.  d.  Wright  v.  Bogan,  I  Hayw.  Rep.  176.  Et  vide 
Blanton  v.  Miller,  ibid.  4.  Park  v.  Cochran,  ibid.  411 .  Garland  v.  Goodlee,  2  Do. 
351. 

But  he  is  not  competent  to  prove  the  hand  writing  of  witnesses  to  a  deed.  Les.  of 
Peters  et  al.  v.  Condron,  2  Serg.  &  R.  Rep.  80. 

Nor  to  prove  the  hand  writing  of  the  person  by  whom  entries  in  his  book  were 
made,  and  who  is  since  dead,  although  he  may  the /act  of  his  death.  Karsper  v. 
Smith,  I  Broivne^s  Rep.  ..'Ip.  iiii. 

A  debtor,  defendant,  who  alleges  to  havp  enclosed  money  to  his  creditor  by  mail, 
which  did  not  come  to  hand,  cannot  prove  by  bis  own  oath  that  he  did  so  enclose  it. 
TJ.  States  v.  Welk,  C.  C.  Oct.  1806,  Jll.  S.  Rep. 

An  executor,  defendant,  may  be  examined  t'l  [irove  the  state  of  papers  offered  in 
evidence,  when  he  found  them,  and  wliere  they  wc  re  found,  from  the  necessity  of 
the  case.  Lukins''s  adms.  v.  De  IIans''s  exrs.  2  Yeates^  Rep.  37.  S.  P.  Standley  et 
al.  V .  Weaver  et  al.  ibid.  256. 

If  one  of  the  parties  in  a  suit  is  sworn  and  examined  at  the  request  of  the  other 
party,  the  latter  cannot  afterwards  object  to  it.  JMiller  v.  Starks,  13  Johns.  Rep. 
517. 

In  Connecticut,  a  party  cannot  be  a  witness  in  his  own  favour,  even  in  Chancery, 
smy  more  than  at  Law.  TFebb  v.  Fitch,  1  Root's  Rep.  177.  Pai/ne  v.  Payne, 
ibid.  367. 

Except  in  an  action  for  a  book  debt  under  the  Statute.  1  Day's  Rep.  104.  Tyler 
V.  Scovel,  1  Roofs  Rep.  523. 

In  an  action  for  giving  the  plaintiff  a  dose  in  some  tody,  the  mother  was  allowed 
to  give  evidence  what  the  plaintiff  had  said  the  next  morning,  from  the  necessity  of 
the  case.   Goodwin  v.  Harrison,  I  Root''s  Rep.  80. 

Where  the  answer  to  the  defendant  in  Chancery,  contains  a  direct  and  positive 
denial  of  the  allegations  in  the  complainant's  bill,  it  cannot  be  outweighed  by  the 
deposition  of  one  wiiniss  only  unsupported  by  corroborating  circumstances.  Beatty 
V.  Smith  et  al.  2  Hen.  U  Jliinf.  Rep.  395.  Jllaiipin  v.  W/iiling,  1  CcUl's  Rep.  224. 
Heffner  v.  Miller  et  a!  i  Mwif.  Rep.  43. 

A  commission  to  examine  oi^e  of  the  defendants  as  a  witness,  should  be  awarded, 
on  the  motion  of  the  plaintiff,  as  a  matter  of  course,  saving  all  just  exceptions. 
riainville  v.  Broxun  et  al  4  Hen.  &  Munf.  Rep.  482. 

But  it  cannot  issue  at  ihe  instance  of  a  defendant,  to  examine  the  plaintiff  as  a  wit- 
ness. Ross  V.  Carter,  ibid.  488. — Am.  Ed. 

(c)  A  person  entitled  to  a  reward  upon  a  conviction,  is  a  good  witness.  State  v. 
Coulter,  1  Hay~^\  Rep.  3.  State  v.  Bainet,  1  Root's  Rep.  249. 

In  SoxUh  Carolina,  where  usury  is  set  up  as  a  defence,  the  defendant  is  a  com- 
petent witness  to  prove  the  usury,  unless  the  plaintiff  will  deny  on  oath  the  truth  of 
what  the  defendant  offers  to  swear  against  him.   Luyton  v.  Haygood,  2  Bay's  Rep. 

177. 

In  Massachusetts,  in  a  suit  between  the  original  debtor  and  creditor,  usury  may 
be  proved  by  the  oath  of  the  defendant.    Bi7iney  v.  Merchant,  6  Mass.  Rep.  190. 

The  inhabitants  of  a  town  are  good  witnesses  in  a  cause  in  which  the  town  is  inter- 
ested Schenck  et  al.  v.  Corshen  County,  I  Coxe's  Rep.  189.  The  Overseers  of 
the  Poor  of  Orange  v.  The  Overseers  of  Springfield,  1  South.  Rep.  186. — Am  Ed, 

•  As  this  is  an  exception  to  the  general  rules  of  law,  the  grounds  on  which  the 
decision  proceeded,  and  the  extent  of  it,  ought  to  be  accurately  understood.    The 


WITNESSES.  gg3 

tourst  of  business,  and  who  alone  can  possibly  have  knowledge  Ch.  in.  s.  3. 
of  a  fact,  may  be  called  as  witnesses  to  prove  it ;  as  in  the  case    ^^"""^^^^J- 
of  a  servant,  who  has  paid  money,  or  a  porter  who,  in  the  ^3^7^^^^, 
of  his  business,  delivers  out  or  receives  parcels ;  though  the  evi-  c^s'j." 

Spencer  v. 

■ ~  (iouldino;, 

Peak  N  P 
only  case  on  the  subject  is  in  2  Roll.  Mr.  685,  68G,  and  from  that  it  has  been  laid  ^^^  j„y ' 

down  in  general  terms,  in  all  subsequent  books,  where  the  subject  has  betn  treated 
of.  The  case  is  reported  in  Rolle  as  follows  : — "In  an  action  against  a  liun<lred 
brought  by  ihe  master,  being  a  carrier,  for  a  robbery  committed  nn  his  servant  in 
the  absence  of  the  master,  quere  whether  the  master,  being  the  plainliff  in  the  ac- 
tion brought,  may  be  a  witness  to  prove  that  he  di-livered  the  monies  of  whicli  his 
servant  swears  he  was  robbed,  before  his  servant  set  out  on  his  journey  in  which  he 
was  robbtd  ;  for  this  might  be  proved  by  any  other,  and  no  person  is  to  be  a  wit- 
ness in  his  own  cause,  but  for  necessity  ;  as  if  he  himself  had  been  robbed,  although 
that  he  ivas  plaint/^,  yet  he  might  be  a  good  xvitness  to  prox<e  himself  to  have  been 
robbed,  and  of -what  sinii  or  things,  and  also  to  prove  that  he  gave  notice  to  the  next 
ville,  and  levied  hue  and  cry,  for  this  is  of  necessity  fur  default  of  other  proof.  But 
as  to  proving  the  delivery  of  the  money  to  his  servant  before  the  robbery,  and  be- 
fore he  set  out  on  his  journey,  this  might  be  proved  by  any  other,  as  well  as  by  him, 
although  it  was  objected,  that  it  is  not  safe  nor  usual  for  men  to  call  witnesses  when 
they  deliver  money  to  carry  on  a  journey,  on  account  of  the  danger  of  discovery  ; 
and  for  this  reason, /)er  Curiam,  against  my  opinion,  it  was  ruled,  that  he  should  be 
received  as  a  witness."  Bennet  \.  Hundred  of  Hertford,  Mich.  1650.  A  similar 
case  occurred  before  Mr.  J.  Chambri;,  where  a  mob  having  robbed  the  plaintitPs 
barge  of  corn  which  was  carried  in  it,  that  part  of  the  case  was  proved  by  the  ser- 
vant ;  but  he  not  knowing  the  quantity  on  board,  and  this  case  being  cited  from  Bui. 
I'V.  P.  197,  his  Lordship,  on  the  authority  of  it,  allowed  the  plaintiff  to  be  examined 
to  prove  that  fact.  Porter  v.  Hundred  ofRagland,  Monm.  Spi\  Ass.  1802,  M.  S. 
Note  in  the  Stat.  S  Geo.  2,  c.  16,  s.  15,  it  is  recited,  that  by  the  laws  then  in  being 
the  person  robbed  was  a  good  witness,  and  the  hundredors  are  thereby  made  wit- 
nesses for  the  defendant. 

Johnson  v.  Broimdng,  2  Jllod.  216.  In  an  action  for  malicious  prosecution,  where 
nobody  was  by  at  the  time  the  supposed  felony  was  committed  but  the  defendant'^ 
wife,  ivho  cojdd  not,  in  this  case,  be  a  witness  to  prove  the  felony  coinmitted.  Holt, 
C.  J.  allowed  her  oath,  which  she  made  at  the  trial  of  the  indictment,  t)  be  given  ir» 
evidence  to  prove  a  felony  committed  ;  for  othirwise  one  that  should  be  robbed, 
&c.  would  be  under  an  intolerable  mischief;  for  if  he  prosecuted  for  such  a  robbe- 
ry, &c.  and  the  party  should,  at  any  rate,  be  acquitted,  the  prosecutor  would  be  lia- 
ble to  an  action  for  malicious  prosecution,  without  a  possibility  of  making  a  good  de- 
fence, though  the  cause  of  prosecution  was  ever  so  pregnant.  Cobb  v.  Carr,  B.  JS\ 
P.  14,  S.  P. 

These  are  the  only  cases,  I  believe,  in  the  books,  where  parties  to  the  cause  have 
been  permitted  to  give  evidetice  for  themselves ;  and,  in  the  latter  case,  it  seems  to 
have  been  taken  for  gianted,  that  the  party  cnuld  not  be  examined,  though  her  for- 
mer evidence  was  admitted.  It  is  probable  that,  in  this  case,  the  evidence  was  given 
by  the  plaintiff  to  shew  the  prosecution,  and  that  being  so  produced,  the  Judge  con- 
sidered it  as  evidence  for  the  defendant ;  and  accordingly,  in  a  late  case  at  Msi 
Pnus,  where  to  prove  a  malicious  charg-  made  b.fore  a  magistrate,  (lie  plaintiff 
produced  the  defendant's  information,  Mr.  Baron  Richards  ol>serv<d,  ihn(  sncli  in- 
formation being  made  upon  o.ih,  must  bt  presumed  to  be  true  till  llie  contrary  was 
proved,  and  as  thi-.  plaintiff  gave  i  •.  evidence  to  shew  his  innocenc*'  of  the  charge, 
directed  the  jury  to  find  for  the  defendant.  Carrier  v.  Thomas,  Glo.  .Spr.  Ass.  181C, 


22|j  WITNESSES. 

Ch.  III.  s,  3.  ilence,  whereby   he  charges  another  witli  the  money  or  goods, 
Necessity,    exonerates  himself  from  his  liability  to  account  to  his  master  for 
'  them ;    for  if  this  interest   were   to  exclude  testimony,  there 

would  never  be  any  evidence  of  such  facts.(rf)* 


(f/)  A  shipmaster  having  received  a  trunk  ot"  gooils  on  board  of  his  vessel,  to  be 
carried  to  another  port,  which  on  the  passage  he  broke  open  and  rifled  of  its  con- 
tents, the  owner  of  the  goods,  after  proving  the  delivery  of  tlie  trunk  -and  its  viola- 
tion, was  admitted  as  a  witness  in  an  action  tor  the  goods  against  the  shipmaster,  to 
testify  to  the  particular  contents  of  the  trunk,  there  being  no  other  e\idence  of  thfc 
fact  to  be  obtained.  Herman  v.  Drinhivaier,  1  Greenl.  Rep.  27. 

An  agent  or  servant,  in  whose  favo'ir  a  wi-itten  order  to  receive  goods  is  given, 
and  wh«  endorses  a  receipt  on  the  order,  may  be  a  witness  from  necessity  in  a  suit 
relative  lo  the  goods,  especially  if  he  be  offered  a  release.  Burlingham  v.  Deyer, 
2  Johns.  Hep.  189. 

Every  agent  is  a  competent  witness,  ex  necesdtate.  Cortes  v.  Billings,  1  Johns. 
Cos.  270.  JMackay  v.  Rhinrlander  et  al.  ibid.  408.  Jones  v.  Hake,  2  Do.  60.  Ab' 
bot  v.  Sebor,  3  Do.  39.   Ste-.uart  v.  Kip,  5  Johns.  Rep.  256. 

An  agent  who  had  received  several  sums  of  money  on  account  of  trespasses  al- 
leged to  have  been  committed  oi!  the  lands  of  his  principal,  and  which  he  promised 
to  refund  in  case  he  should  not  recover  in  an  action  against  a  particular  trespasser, 
is  a  competent  witness  in  that  act. on.  Renaudet\.  Crocker,  \  C allies'' Rep.   167. 

An  agent  or  broker,  authorised  to  purchase  goods  on  certain  terras,  is  a  competent 
"witness  in  a  suit  between  the  vendor  and  vendee  ;  for,  if  he  had  exceeded  his  autho- 
rity, he  would,  at  all  events,  be  liable  to  the  losing  party,  and  if  he  had  not,  he  would 
be  liable  to  neither.  Bailey  et  al.  v.  Ogden,  'Z  Johns.  Rep.  399. 

An  agent  IS  a  competent  witness  to  piovethat  he  paid  a  sum  of  money  to  the 
agent  of  the  plaintiff's  assignors.  JMeade  v.  Tate.  2  CalPs  Rep.  231. 

If  one  as  ugentior  another,  purchase  a  bill  of  excii^nge,  and  endorse  it  over  to 
his  principal,  the  latti  r  may  call  him  as  a  witness,  if  he  first  prove  him  to  liave  been 
merely  an  ageiit.  J[Iurruy  v.  Carrot,  3  Call's  Jiep.  373. 

A  broker,  who  negotiated  the  business  between  the  borrower  and  lender,  tliough 
the  payee  of  the  note  is  a  competent  witness  to  prove  the  usurious  transaction. 
Payne  v.  Trezevant,  2  Bay's  Rep.  23. 

An  agent,  who  orders  work  lor  another,  is  a  good  witness,  ex  necessitate.  Trou- 
ard  v.  JVlartin,  Orleans  T.  Rep.  80. 

A  purchasing  agent  is  a  competent  witness  lo  prove  that  his  principal  had  notice 
of  an  encumbrance,  notwithstanding  such  agent  join-d  in  a  deed  conveying  the  pro- 
perty to  the  principal,  free  from  the  claim  of  any  person  whouisoever,  Blair  v. 
0-wles,  1  Munf.  Rep.  38. 

Et  vide  ante,  p.  43,  note  (f)  ;  post,  Digest  of  Cases  at  the  end  of  this  section,  letter 
(B.)— Am.  Ed. 

•  For  other  instances,  in  which  persons  have  been  admitted  witnesses  from  ne- 
cessity, see  Digest  of  Cases  at  the  end  of  this  section,  letter  (A.)  plac.  8.  (B.) 
plac.  1,  2,3.  4,  5,  6.  13.  (F  )  plac.  2. 

On  this  principle  of  necessity  it  has  been  said,  that  in  informations  on  the  Stat.  15 
Car.  2,  asiainsl  liunting  deer,  the  Statutes  of  Conventicles,  and  the  Act  of  Naviga- 
tion the  informer  shall  be  a  witness,  though  jiKrt  of  the  penally  goes  to  him.  GiU). 
La~M.  Ev.  132.  The  only  case  which  supports  this  doctrine  is  that  of  Jennings  V. 
Hunkey,  3  J\Iod.  114  ;  but  the  many  cases  collected  by  Mr.  J\'olan,  in  his  note  on 
Rex  V.  Tilly,  1  Stro.  315,  fally  establish  thf  contrary  position.  In  addiuun  to  these 
may  be  menUoned,  the  case  oi  Rex  v.  Blackmore,  I  Esp.  Cas.  95,  where  a  witness 


WITNESSES. 


225 


It  frequently  happens  that  persons  are  made  defendants  with  Ch.  in.  s.  s. 
others,  for  the  mere  purpose  of  excluding  their  testimony.     In   P^']'"'S">a 
this  case,  if  no  evidence  whatever  be  given  against  the  person  ________ 

so  improperly  made  defendant,  he  will  be  entitled  to  an  acquit- Giib.  Law 
tal  immediately  the  plaintiff  has  closed  his  case,  and  may  then  ^^-  ^34. 
be  examined  as  a  witness,  on  behalf  of  the  other  defendant ;  and 
in  like  manner,  a  defendant  in  trover,  who  had  suffered  judg- 
ment by  default,  was  permitted  by  Lord  Kenyon   to  give  evi- 
dence to  prove  his  co-defendant  (who  pleaded)  not  guilty.(l)(i) Ward*. 
But  a  defendant  who  suffered  judgment  by  default,  in  an  action  2  Esp°  552. 
on  contract,  is  not  a  witness  for  the  plaintiff  to  charge  the  other 

.  .  .  (2)  Brown  f. 

defendant,  he  being  interested,  to  make  him  liable  to  contribu-  Brown,  4 
tion.(2)     Soon  an  indictment  against  two  for  an  assault,  one  J**""!  .'^^- 

Sci  vi(Jt2  uotc 

submitted  and  was  fined,  and  he  also  was  admitted  as  a  witness  136. 
for  the  other.(3)(e)  But  if  there  be  the  slightest  evidence  to  charge  .  ,  „ 

___ ■  Fl  ich.M-, 

^    ^  1  Sti-ii.  633. 

■was  rejected  on  an  information  (under  the  Statute)   for  coiict-aling  naval  stores,  as  f-;ii|j_  LawEr. 

being  the  informer,  and  being  entitled  to  a  nioietj  of  the  penalty  ;  though  in  Rex  v.  134. 
Cole,  Peake's  Cas.  -218,  Lord  Kenyon  held,  a  witness  stamling  in  a  simihir  situation 
■WHS  not  objectionable,  because  lie  had  no  absolutf  right  to  the  penalty  vested  in 
him,  as  the  Court  were  not  bound  to  inflict  a  pecuniary  penalty.  So  in  prosecutions 
on  the  Stat.  21  Geo.  3,  c.  37,  for  exporting  machinery,  and  on  the  Stat  23  Geo.  2, 
c.  13,  for  seducing  artificers  to  go  out  of  thi^  kingdom,  the  informers  have  been  held 
to  be  competent  witnesses.  Hex  v.  Teasdale,  3  Esp.  Cas.  68.  Rex  \ .  Johnson, 
fVilles,  425.  And  in  cases  of  rewards  for  the  apprehension  of  felons,  &c.  it  was  re- 
solved by  all  the  Judges,  that  the  person  apprehending,  beingentitled  to  the  reward, 
did  not  disable  him  from  being  a  witness.  Vide  JLeacJi's  Cro.  Cas.  353,  note.  It 
should  be  observed,  that  most  of  the  Statutes  giving  rewards,  in  such  cases,  were 
repealed  by  the  Stat.  58  Geo.  3,  c.  rO.| 

(e)  Where  persons  have  been  joined  as  defendants,  against  whom  there  is  no 
charge  in  the  evidence,  they  may  be  admitted  as  witnesses.  State  v.  Sliaiu,  1  Root's 
Rep  134. 

The  same  rule  will  apply  in  a  civil  case.  Bar7iey  v.  CiUlav,  ibid.  489.     ^ 

The  guardian  of  a  plaintiff"  infant  in  Chancery,  may  be  examined  for  him,  saving 
all  just  exceptions  to  be  made  at  the  hearing.  Trustees  of  Huntington  \.  JVicoll, 
3  Johns.  Rep.  566. 

If  circumstances  are  proved,  from  which  it   is  possible  for  the  jury  to  presume  ' 

facts  amounting  to  guilt,  a  defendant  in  an  indictment  cannot  be  a  witness.    Penn- 
gylvarda  v.  Leach  et  al.  Addis.  Rep.  352. 

A  party  in  the  same  suit  or  inrlictnient,  cannot  be  a  witness  for  his  co-defendant 
until  he  has  been  acquitted  or  convicted  ;  and  whether  the  defendants  plead  jointly 
or  severally,  makes  no  difference.   The  People  v.  Bill,  10  Johns.  Rep.  95. 

So  on  an  indictment  for  a  riot  agamst  si-veral,  where  the  evidence  as  to  one  was 
insufficient  for  a  conviction,  yet  the  Court  would  not  strike  his  name  out  of  the  in- 
dictment with  a  view  to  make  him  a  witness  for  the  defendant,  without  the  assent  of 
the  Attorney  General,  though  they  might  advise  his  acquittal.  The  State  v.  Alex- 
ander et  al.  2  Rep.  Const.  Ct.  S.  Car.  171. — Am.  Ed. 

■}■  On  an  indictment  where  a  witness  is  entitled  to  a  part  of  the  penalty,  he  is  a 
competent  witness,  if  he  releases  his  interest.  Torre  v.  Summers,  2  JSTott  £J 
M'  Cord's  Rep.  267. 


gg6  WITNESSES 

Ch.  m.  s.  3.  one  defendant,  he  cannot  be  a  witness  for  the  others  ;  because 

»rties  ir 
cause. 


Parties  m  a  ^jjg  question,  as  to  his  liability,  must  wait  the  final  event  of  the 


verdict,  and  the  jury  may,  of  their  own  knowledge,  have  further 
Raven  etai.    information  of  the  fact,  than   what  they  collect  from  the  wit- 
■t).  Dunning     nesses  in  Court.(/)     Thus  where  A.  and  B.  being  jointly  sued 
3Esp.  Cas.     in  assumpsit,  B.  pleaded  his  discharge  under  a  commission  of 
25,  S.  C.        bankruptcy,  and  on  the  trial  proved  his  certificate ;  Lord  Ken- 
yon  held,  that  he  was  not  entitled  to  an  immediate  acquittal, 
but  that  the  plaintiff,  having  made  a  case  against  him,  was  en- 
titled to  have  the  whole  case  submitted  to  the  jury  at  the  same 
time,  and  consequently,  he  could  not  be  examined  as  a  witness 
for  the  other  defendant.(g) 

A  prosecutor  under  the  election  law  of  15th  Feb.  1799,  who  is  entitled  to  one 
moiety  of  tlie  fine,  may  be  admitted  a  witness  on  executing  a  release  to  the  defend- 
ant. Respiiblica  v.  Ray,  3  Yentes^  Rep.  65. 

All  tw/o'-w^r  who  bi-ings  a  qui  tam  action,  is  not  a  competent  witness.  Sellv. 
Scott,  Kirb.  Rep.  62.  Et  vide  Rapp  v.  Le  Blanc,  I  Ball.  Rep.  63.  Commonreealik 
V.  Frost,  5  JHass.  Rep.  57. 

In  a  gvi  tam  action  to  recover  the  excess  of  interest,  above  the  legal  rate,  the 
borrower  having  returned  the  loan,  and  the  agreement  being  cancelled,  is  compe- 
tent to  she  w  the  usury.  Pettiiigalv.  Bro-wii,  1  Caines''  Rep.  168. 

In  an  action  qid  tam  to  recover  the  penalty  given  by  the  Act  concerning  slaves,  a 
member  of  the  JVew  York  Manumission  Society,  is  a  competent  witness,  he  being 
under  no  legal  obligation  to  contribute  to  the  expenses  of  the  suit,  and  having  no  in- 
terest in  the  event  of  it.     Gilpin  v.  Vincent,  9  Johns.  Rep.  219. 

In  a  qui  tam  action,  it  is  no  objection  to  a  witness  for  the  plauitiff,  that  the  penalty 
\then  recovered,  is  to  be  appropriated  to  the  support  of  the  poor  of  the  town  in 
which  he  is  an  inhabitant,  and  liable  to  be  taxed  for  the  purpose.  Bloodgood\. 
Overseers  of  Jamaica,  I'i  Jolms.  Rep  285.    Corwei'i  v.  Homes,  11  Johns.  Rep.  76. 

An  informer,  unless  saved  by  the  Statute,  or  from  necessity  of  the  case,  is  not  a 
competent  witness.  Ede  Van  Evour  v.  The  State,  2  JVbtt  £if  Jtl' Cord's  Rep. 
309,  »i. 

The  party  from  whom  goods  have  been  stolen,  is  a  competent  witness.  Common- 
-uealth  y.MouUon,  9  Mass.  Rep.  30. 

A  person  entitled  to  a  reward  on  a  conviction,  is  a  competent  witness.  State  v. 
Coulter,  1  Boi/w.  Rep.  3.  Vide  ante,  p.  222  .n.  c. — Am,  Ed. 

CfJ  Brown  et  al.  v.  Hoxvard,  14  Johns.  Rep.  119.  Van  Deusen  et  al.  v»  Va?i 
Slyck  et  tix.  15  Do.  223. 

A  nominal  defendant  in  ejectment,  w-ho  afterwards  assigns  his  interest  to  a  oo- 
defendant,  and  quits  the  possession,  being  released  from  all  liability,  may,  with  his 
own  consent,  be  examined  as  a  witness  for  the  plaintiff.  Les.  of  Patterson  et  al.  v. 
Hagerman  et  al.  2  Yeates'  Rep.  163.  S.  P.  Diermond  v.  Robinson  et  al.  ibid.  324. 
— Am  En. 

(^)  A  co-heir  of  lands  descended  from  an  intestate,  may  be  called  by  the  defend- 
ant as  a  witness  lo  testify  against  the  other  co-heirs,  who  are  plaintiffs,  where  he  is 
not  a  party  to  the  suit.  J\''ass  v.  Vansnuearingeji,  7  Serg.  £^  R.  Rep.  192. 

In  an  action  against  a  crtificated  conveyancer,  for  negligence  in  managing  the 
purchase  of  an  annuity  for  the  plaintiff,  a  joint  purchaser  is  a  competent  witness  for 
the  plaintiff.  Rothery  v.  Howard,  2  Starkie''s  Rep.  68. — Am.  Ed. 


WITNESSES.  ggy 

If  the  plaintiff,  in  his  declaration,  state  that  the  defendant,  £h.  iii.  s.  3. 
together  with  ji.  B.  committed  a  trespass,  this  will  not  deprive  P^i't'-^s  in  a 
the  defendant  of  the   testimony  of  ji.  B.  unless  evidence   be  ' 

given  of  his  having  been  concerned  in  the  fact,  and  that  process  ,^  j^^^  ^  ,y.| 
had  issued  against  him,  and  endeavours  used  to  serve  him  with '■' "s,  Cas. 

•x  ri,\  Temp.  Hai-d. 

^^•k"')  123.     Hillr-. 

Other  casesj'which  at  first  sight  seem  to  expose  a  witness  to  this  F'';  miiig,  Ibid. 
objection  on  account  of  interest,  are  taken  out  of  the  rule  by  a 
counter  interest  in  him,  as  where  his  interest  in  the  event  of 
the  cause,  supported  by  his  evidence,  is   counteracted  by   an 
equal  or  greater  interest,  that  it  should  be  decided  otherwise ; 
for  instance,  if  an  indictment  be  preferred  against  a  county  for 
not  repairing  a  bridge,  and  the  only  question  be,  whether  it  is  Case  of  Peter- 
in  repair  or  not  ?    men  of  the  county  are  good  witnesses  ;  be-  ^.^^J'^  j  ventr 
cause  it  is  equally  desirable  to  every  man  that  the  bridge,   for3>i. 
convenience  of  passage,  should  be  repaired  when  it  is  necessa-  jjg'    ^"^    ^' 
ry ;  as  that  the  county  should  not  be  put  to  an  unnecessary  i^'^'^^- l"'»a- 
charge ;  so  that  they  are  perfectly  indifferent,  being  equally  con-  \\  iits,  6Mod. 
cerned  in  both  sides  of  the  question.*(i)  307. 

(/i)  In  an  action  of  trespass  against  several  joint  defendants,  if  there  be  no  evidence 
against  some  of  them,  to  implicate  thera  in  the  trespass,  they  ma)-  be  struck  off  the 
record,  and  admitted  as  witness-s  for  their  co-defendants.  Jiroimi  ei ul,  v.  How- 
ard, 14  Johns.  Hep  119.  Van  JDeusen  et  al.  v.  Van  Beusen,  15  Do.  223.  Wake- 
ly  V.  Hart  et  al  6  JUnri.  Rep.  316.  State  v.  Shaw,  1  Root.  Rep.  !34.  Barney  v. 
Cutlar  et  al.  ibid.  489. 

Et  vide  Church  v.  De  Wolf.  2  Root   Rep  282.     Runneij  v.  Church,  ibid.  420. 

But  ill  Davis  v.  Uvijig  '-t  al.  I  Hull.  JV"  P.  Rep.  it  was  hf  Id  to  be  discretion- 
ary with  the  Judge  ai  JVisi  Prius,  wh  ther  he  will  direct  the  acq.nital  of  sucli  de- 
fendants against  whom  there  is  no  evidence,  for  th*-  purpose  of  making  them  wit- 
nesses for  the  co-defendants. 

If  a  writ  against  two  be  served  onlv  on  one,  and  the  suit  proceed  against  the 
other,  the  latter  is  not  excluded  from  being  a  witness,  on  the  gi-c^uml  th.»i  he  is  a 
party  to  the  suit.  Purviance  v.  Dryden,  3  Serg.  6?  R.  Rep.  402.  Stochham  v. 
Jones  et  al.  10  Johns.  Rep.  -1. — Am.  Ed. 

•  By  Stat  1  Jltine,  st.  1,  c.  18,  s.  13,  inhabitants  of  the  county,  &e.  are  -nadegood 
witnesses,  where  the  question  is,  whether  private  persons,  &c.  are  oblig.-d  lo  repair.' 

(i)  The  circumstance  that  the  witness,  in  case  of  the  recovery  of  iie  uf  iSie  par- 
ties, would  be  liable  to  compensate  the  otherybr  the  costs  of  the  present  acti'tn,  does 
DOI  destroy  the  equality  of  interest.     B'it  et  al.  v.  Xirshii-w,  i  East,  Rep.  458. 

But  111  Jones  v.  Brooke,  4  Taunt.  Rep.  464,  a  witness  was  held  incompetetit,  who 
would  have  been  liabU  ai  all  events  to  pay  to  the  1<  si.ig  pai  ty  the  conients  of  a  bill 
of  exchange,  but  in  CHSe  of  a  recovery  against  the  det'siulant,  wo'ild  hav-- been  an- 
swei-abl--  to  him  in  damages  for  being  sued,  and  toi  the  costs  of  the  action 

In  Brind  v.  Bacon,  5  Do.  183,  it  was  held  that  tht  guarantee  (;f  a  bill  discharged 
by  banknipic)  ol  his  lubilily  on  the  bill,  was  not  an  incompetent  witness  in  an  ac- 
tion on  ihi  bill,  b)  reason  of  his  liabdity  for  costs. 

If  a  witness,  liable  to  the  defendant  in  case  the  plaintiff  recover,  have  a  remedy 


228  WITNESSES. 

Ch.  III.  s.  3.      On  the  same  principle,  tlie  acceptor  of  a  bill  of  exchange  is  a 
imriffnvnt.    competent  witness  in  an  action  against  the  drawer,  to  prove  that 
_______  he  had  no  effects,  and  thereby  prevent  the  necessity  of  notice  to 

Staples  r.       him  ;  for  though,  by  supporting  the  action  against  the  drawer, 
Okins,  K^B.  j,g  relieves  himself  from  an  action  at  the  suit  of  the  holder,  he. 

Sittings  iitlHi-  .  .  ir.,1  -iC 

E;isi.Tni.  at  the  same  time,  gives  an  action  against  himselt  at  the  suit  ot 

1795,  M.S.  ^j^g  drawer,  in  which  the  evidence  he  has  given  of  the  want  of 

S.  C.  consideration  will  not  avail  him,  but  must  be  proved  by  another 

Gootlarret;.  ^yjtriess.    But  where  a  man  was  proved  to  be  a  partner  with  ano- 

Hreame,  "^  ^ 

Peak.  N.  P.    ther,  against  whom  an  action  was  brought,  it  was  holden    that 
*^**  he  was  no  witness  to  prove  that  the  goods  were  sold  to  the  other, 

as  his  servant,  and  on  his  sole  credit,  because  the  action  which 
which  he  gave  against  himself,  was  countervailed  by  a  greater 
interest  in  getting  rid  of  a  moiety  of  the  costs  of  the  present  ac- 
Youngv  Bair-tion,  to  which  he  as  partner,  would  be  liable;  but  this  interest 
Cas'i^^'*  maybe  removed,  and  his  competency  restored,  by  a  release 
from  his  partner  of  any  demand  he  may  have  upon  him  in  con- 
sequence of  the  verdict.(A;)* 

over  against  a  third  person,  he  is  cumpetent.  Ridley  et  al.  v.  Taylor,  13  East. 
Hep.  175. 

But  it  has  been  held,  that  a  witness,  who  might  ha-ve  a  remedy  by  action  whether 
the  plai'.UifFor  defendant  had  a  verdict,  was  nevertheless  interested  ;  because  under 
the  circumstances  oFihe  case,  lie  would  have  a  greater  difficulty  in  the  one  case 
than  the  other,  to  enforce  that  remedy.  Burkland  v.  Tankard,  5  Term  Rep.  578. 
Owen  V.  Mann,  2  Day''s  Rep.  399. 

One  who  is  equally  liable  to  an  action  by  both  parties,  is  a  competent  witness 
for  either.  JVessley  v.  Swearingun,  Addis.  Rep.  144.  Peterson  v.  Willmg  et  al. 
3  Ball.  Rep.  506.  Bailey  i-t  al.  v.  Ogdens,  3  Johns.  Rep.  420.  Stump  \.  Roberts, 
1  Cooke's  Rep.  350.  M'Leod  v.  Johnston,  4  Johns.  Rep.  126.  Alexander  v. 
Mahon,  11  Do.  185.  JVEhmrd  v.  Hallet,  2  Cuiiies'  Rep.  77.  Baring  v.  Reeder, 
1  Ben.  £J  Munf.  Rep.  164.  Braxton's  adm.  v.  Hilyard,  2  Mviif.  Rep.  49  Cush- 
man  v.  Loker,  2  Mass.  Rep.  106.  Rice  v.  Austin,  17  Bo  197.  Sed  vide  Emer- 
ton  v.  Andre-u,s,  4  Bo.  653.  fVitliams's  adms.  v.  Bradley,  2  Hayw.  Rep.  363. 
Smyth  v.  M'Bo-v),  1  Rep.  Const.  Ct.  S.  Car.  277. 

One.  who  has  made  an  assigiinient  ol  all  his  estate,  in  trust,  to  pay  his  debts,  and 
to  return  the  sui  j>lus,  it  any,  to  himself,  is  a  competent  witness  in  an  action  ot  tro- 
ver brtiiighl  by  his  assignet- s  against  one  of  his  creditors  who  claims  to  bold  goods  as 
a  security  tor  the  debt  due  from  the  assignor ;  because  the  interest  which  the  wit- 
ness has  ill  the  surplus  is  balanced  by  his  interest  in  the  application  of  the  property 
in  tht-  hands  ol  the  defendant  to  the  extinguishment  of  the  debt  due  to  him.  Jaco' 
byetal  v.  Laussatt,  6  Sei'g.  &  R.  Rep.  300. — Am.  Ed. 

(k)  In  an  action  against  two  partners,  one  of  them  who  has  not  been  arrested, 
may  be  sworn,  to  prove  the  qunnmra  of  the  demand  on  the  part  of  the  plaintiff'. 
J'trorman  v.  J\'orman  et  al  2  Yeates'  Rep.  154. 

In  an  action  against  A.  B.  and  C  as  secret  partners,  it  was  held,  that  the  declara- 

•  In  a  subsequent  case  the  Court  determined,  that  where  it  appears  the  witness 
is  iiiterestt  d  both  ways,  they  c<tild  not  nicely  weigh  on  which  side  his  interest  pre- 
poaderated  ;  and  therefore  an  endorser  of  a  promissory  note,  to  whom  the  drawer 


WITNESSES.  ggg 

The  evident  policy  of  this  rule  of  law,  is  to  prevent  those,  (vh.  iii  s.  3. 
who  necessarily  have  a  strong  bias  on  their  minds,  from  be-  i^'j7ejllfi'lule 
ing  put  in  a  situation  where  their  interest  may  induce  them  to  without  bene- 

t  r  ,i,,i  liif  •  f  ficial  interest. 

depart  from  the  truth  ;  and,  therefore,  as  we  saw  in  a  former 
instance,  where  the   interest  is  strictly  formal,  arising  from  the  /TT^nbTII 
situation  in  wliich  they  are   placed,  and   they  cannot  be  really  Ev.  123. 
benefited  or  injured  by  the  event  of  the  cause,  it  does  not  apply.  ,2)  g,,oss  v. 
Of  this  nature,  is  the  case  of  a  guardian  in  soccage,  who  may  beT'acy,  1  p. 

.  .  Will    290 

examined  on  the  behalf  of  his  ward  in  an  action  brought  by  him:(l)Goo,iti^ie ' 
so  a  grantee,  executor,  or  devisee,  who  is  merely  a  trustee,  and '•«">•  F"'^"-''' 
has  no  beneficial  interest,  may,  in  cases  where  he  is  not  a  party  oougi.  139. 
on  the  record,  give  evidence  of  the  grant  to  him,(2)  or,  in  sup- ,,, . 

'  o  _  »  ^\    J       '  r    ^3^  Lowe  v. 

port  of  the  will,  by  proving  the  sanity  of  the  testator;  and  thejoHifte,  1 
circumstance  of  his  having  acted   in  the  trust  will  not  i'ender|gg'^yl'g;^'^y^,_ 
him  incompetent.(3)     But  the  case  of  a  guardian  on  record,(4)tisonr'.  Biom- 
stands  on  a  very  diflferent  foundation,  for  he  is  really  interested  Ijj^'  \^^^^  '^^l^ 

155! 

(4)  Hopkins 

tions  and  acts  of  ^d.  thouirh  evidence  to  shew  that  he  considered  himself  a  secret ''^''  Neale, 

2  Stn   ll)''6 
partner  with  B.  and  C.  vera  not  admissible,  directly  to  implicate,  or  charge  Ji.  as  *  '^'^  '  •    ^^  ' 

a  partner.  Whitney  v.  Ferris  et  al.  10  Johns.  Rep.  66. 

Ar.  admission  by  one  partner,  after  the  dissolution  of  the  partnership,  of  a  balanct; 

due  from  the  firm,  does  not  bind  the  firm  ;  but  eniries  made  by  one  partner  during 

the  partnership,  in  a  book  of  accounts,  are  admissible  evidence  against  both.    Walclen 

et  al.  V.  Sherburne  et  al.  15  Johns  Rep.  409. — Aitf.  Ed, 

had  given  money  (0  take  it  up,  was  held  to  be  a  competent  witness  for  t!ie  defendant 
to  prove  it  paid,  being  either  liable  to  the  plaintiff  on  the  note,  or  to  the  defendant 
for  the  money  had  and  received.  His  being  also  liable,  in  the  latter  case,  to  the 
costs  incurred  by  the  action,  was  considered  as  making  nodifP  rence.  Birt  v.  Ker- 
shaiu,9,  £as<,  458.  So  where  one  partner  drew  a  bill  in  the  partnership  firm  to 
the  order  of  the  firm,  and  after  it  was  accepted  by  the  defendant,  passed  it  to  the 
plaintiff,  who  was  a  separate  creditor  of  such  partner  for  his  separate  debt ;  it  was 
held,  that  in  an  action  against  the  acceptor,  he  might  call  eithf-p  partner  to  disprove 
the  authority  of  the  d>btor  partner  to  give  the  joint  security,  and  that  tin-  bankruptcy 
of  the  debtor  partner  in  the  meantime,  did  not  vary  tlie  question  of  competencj'. 
Ridley  y.  Taylor,  13  East,  175.  And  aijain  in  Brind  v.  Bacon,  5  Taunt,  183,  it 
■was  held,  that  a  (lerson  who  had  guaranteed  ihf  payint  nt  of  a  bill  iiaviug  become 
bankrupt,  whereby  he  was  discharge  d  from  thi-  bill,  was  not  incompetent  by  reason 
of  his  liability  to  costs  in  an  action  on  the  bill.  But  where  an  action  was  brought 
against  the  acceptor  of  an  accommodation  bill,  the  Court  of  Common  Pleas  held, 
that  the  drawer  was  not  a  witness  to  prove  that  the  holder  took  the  bill  on  an  usu- 
rious consideration,  and  this  on  account  of  the  superior  interest  he  had  in  the  case  of 
the  acceptor,  for  the  holder,  it  was  said,  could  recover  against  him  only  the  con- 
tents of  the  bill,  whereas  the  acceptor  was  entitled  to  recover  against  him  both  the 
amwint  of  the  bill  and  all  damages  he  might  oustain, including  the  costs  of  the  action 
against  hims'-lf.  Jones  v.  Brooke,  4  Taunt.  404.  For  other  instances,  where  a 
witness  is  adiiiiited  on  account  of  his  indifference,  vide  Dgest  at  the  end  of  this  sec- 
•ion,(R)5. 


%S0  WITNESSES. 

Ch.  III.  s.  3.  in  the  event  of  the  suit,  being  liable  to  the  costs,  in  case  the  ver- 
ShTmleives^^^t  is  against,  the  infant  whom  he  protect8.(/) 
miercstefi  Where  a  right  is  claimed  by  a  witness,  which  is  supposed  to 

interest  him  in  the  event  of  a  cause,  it  should  be  considered  be- 


where  they 
are  not  so 


{I)  An  executor,  plaint'ff,  on  a  ft-igned  issue  to  try  the  validity  ot  a  will,  is  not  a 
competent  witness,  being  liable  for  costs.     Vansant  v.  Boi'emi,  1  Binn.  Rep.  444'' 

An  I'xecutnr,  plaintiff,  who  had  no  interest  in  (he  residue  of  the  estate,  was  ruled 
not  to  be  competent,  although  the  costs  were  offered  to  be  lodged  iu  the  Court. 
Cochran  \.  Cochran  etui,  cited  I  Yeates'  Rep.  134. 

So  whtre  issut-  is  joined  on  the  plea  o\'  plene  adminifstravit,  an  administrator  can- 
not become  a  witness  by  I'eieasing  his  interest,  and  pacing  costs,  because  the  issue 
may  be  I'ound  against  him,  and  he  be  rendered  personally  liable  for  the  debt.  Heck- 
ert  et  cil.  y.Huine,  6  Binn.  Rep.  16. 

An  admiiiisti-alor,  plaint'ff,  who  had  been  clerk  to  the  intestate,  was  held  to  be  a 
good  witness  to  piove  a  book  of  original  entr'ies  of  the  intestate,  and  that  he  himself 
made  certain  original  entri'  s  in  the  book,  when  it  did  not  appear  that  there  was  any 
other  person  living  that  could  make  the  proof.  Ash  et  al.  v.  Patton,  3  Serg-.  &  R. 
Rep  300. 

The  practice  of  the  English  Chancery,  to  admit  a  trustee  as  a  witness,  has  been 
uniforml\  adopted  in  the  Courts  of  Law  of  Pennsylvaniu.  Drum  v.  Les.  of  Simpson, 
6  Binn.  Rep.  478. 

A  trustee  is  competent  to  give  evidence  of  misrepresentations  in  coosequence  of 
■which  he  accepted  the  trust,    ibid. 

An  executor,  defendant,  may  prove  the  state  of  papers  when  he  found  them,  and 
where  they  were  discovered.  Lenox  \.  De  Haas  et  al.  2  Yeates''  Rep.  37.  Standley 
et  al.  V,  Weaver  et  al.  ibid.  256. 

But  an  executor,  defendant,  cannot  prove  a  fact  material  to  the  issue,  Dehvffs. 
Turbitt  et  al.  3  Yeates''  Rep.  157. 

An  attornej  in  a  suit,  may  be  examined  to  prove  the  state  of  an  instrument  when 
put  into  his  hands.  Baker  et  al.  v.  Arnold,  1  Gaines'  Rep.  258.  Et  vide  Reid  v. 
Colcock,  I  Mott  U  M'  Cord's  Rep.  592. 

Where  a  chose  of  action  is  assigned  before  suit  brought,  the  nominal  plaintiff 
where  the  transfer  is  bona  fide,  ami  he  takes  no  part  in  carrying  on  the  suit,  and 
is  to  gain  nothing  by  its  termination,  was  admitted  as  a  competent  witness,  though 
he  admitted  that  the  assignment  was  made  with  an  intention  to  open  the  way  for  his 
testimony.     Wistar  v.  Walker,  2  Brci-wne''s  Rep.  166. 

To  rtniovi- an  objection  to  the  plainiifl"'s  evidence  on  the  ground  of  liability  to 
costs,  it  is  necessary  that  the  whole  costs,  which  have  accrued,  or  may  accrue, 
ihonld  be  pai'l,  and  that  he  should  stipulate  that  in  no  event  should  those  costs  be 
refunded.     Ash  et  al.  v.  Patton  3  Sei-g.  cf  R.  Rep.  300. 

A  plaintiff,  who  after  the  commencement  of  the  action  has  made  a  voluntary  as- 
signment of  all  his  property  to  trustees,  for  the  benefit  of  his  creditors,  and  who  has 
released  to  his  assignees  all  money  that  may  be  recovered  in  the  suit,  is  a  compe- 
tent witness,  provided  all  the  costs  are  paid  before  he  is  sworn.  Steele  v.  Phcenix 
Ins.  Co.  3  Bin7i.  Rep.  3()6.  Broivne  v.  Weir,  5  Serg.  &  R.  Rep.  401.  Wash- 
ington J.  in  the  case  of  WWi/ig- e<  al.\.  Consequa,  1  Peters' Rep.  308,  says,  "I 
yield  my  entire  consent  to  the  principles  laid  down  in  Steele  v.  Phoenix  Ins.  Co. 

A  contrary  decision  was  made  in  Virginia,  by  a  majority  of  the  Court,  in  Cogbill 
V.  CogbiUet  al.  2  Hen.  &  Miinf.  Rep.  467. 

An  administrator,  who  is  one  of  the  plaintiffs  in  the  suit,  may  be  examined  as  a 
witness  for  the  plaintiffs,  after  he  has  executed  a  release  to  the  heirs  of  his  claim  for 
commissions,  and  has  paid  to  the  prothonotary  a  sum  suflicieut  to  pay  all  the  costs 


WITNESSES.  2Si 

fore  he  is  rejected  on  that  account,  whether  it  be  a  strict  legal  ch.  in.  s.  3. 
right,  or  one  existing  merely  in  his  own  imagination;  for  if  the ^'''■'^o"^ '*''"''■ 
latter  only  be  the  case,  it  does  not  seem  to  fall  within  the    selves,  &c. 

rulej(l)(m)  thus  it  has  been  said,  that  a  mere  tenant  at  will  

may  prove  livery  of  seisin  in  his  lessor,  for  his  interest  being  so  (\)  Hale  sup, 
precarious  that  he  cannot. maintain  an  action  for  the  possession*  Giib.  Law  Ev. 
he  is  considered  by  the  law  as  no  more  than  the  servant  or  bailiff*^'*- 


■which  have  accrued  oi"  may  accrue,  to  be  applied  to  such  payment,  let  the  verdict 
be  as  it  may,  unless  it  .appear  that  he  is  in  danger  ot  being  involved  in  a  devastavit. 
Patton's  adms.  v.  Ash,  7  Serg.  &  R.  Rep.  116.  Et  vide  Richtar  v.  SeUn,  8  Do. 
425. 

A  stockholder  in  a  bank  on  being  offered  as  a  witness  in  favour  of  the  bank,  exe- 
cuted a  transfer  of  his  stock,  to  his  daughter,  then  at  a  distance,  and  without  her 
knowledge,  and  delivered  to  the  cashier  for  her  use,  it  was  held,  that  he  thereby 
became  a  competent  witness.  Smith  v.  Bank  of  Washington,  5  Serg.  ij  R.  Rep. 
318. 

A  liability  for  the  costs  of  the  suit  will  render  a  witness  incompetent,  though 
generally  speaking  a  mere  naked  trustee,  without  any  interest,  iscorapetent.  Maiii 
v.A'e^vson,  1  Jnth.  JV'.P.  Cas.  7.— Am.  Ed. 

(m)  In  JMassachusetts,  it  has  been  ruled,  that  where  a  witness  would  testify  under 
an  impression  Xh^t  he  is  interested  in  the  event  of  the  suit,  though  in  fact  he  has  no 
legal  interest  in  it,  yet  he  is  disqualified.  Plumb  v.  Whiting,  4  J\fass.  Rep.  518. 

In  Vermont,  a  person  was  offered  as  a  witness,  who  declared  he  considered  him- 
self interested  when  he  is  not,  on  being  informed  by  the  Court  he  is  not,  he  shall  be 
adnnitted,  and  the  bias  of  his  mind  shall  go  to  his  credibility.  State  v.  Clark,  2TyI. 
Rep.  278. 

A  person  who  thinks  himself  interested,  when  in  fact  he  is  not,  is  nevertheless  a 
competent  witness.  Long  v.  Baillie,  4  Serg.  &  R.  Rep.  226.  Fernsler  v.  Carlin, 
3  JDo.  130. 

Where  a  person  offered  as  a  witness  at  the  trial  of  an  information  filed  against 
certain  goods,  being  examined  on  his  voire  dire,  said  that  he  assisted  in  making  ;< 
seizure  of  the  goods,  and  in  case  they  were  condemned,  but  not  otherwise,  he  ex- 
pected some  compensation  from  the  informer,  though  he  had  received  no  positive 
promise,  his  testimony  was  held  to  be  inadmissible.  JM'Veaugh  v.  Goods,  I  Dal!. 
Rep.  62,  cited  and  approved  in  the  case  of  hmis  v.  JUitlar,  2  Do.  50. 

So  a  creditor,  though  not  excluded  from  giving  testimony  as  such,  yet  if  he  ac- 
knowledge that  he  expects  to  gain  or  lose  by  the  cause,  he  is  tiiereby  excluded  as 
a  witness.  Jnnis  v.  Millar,  2  Dall.  Rep.  50. 

A  witness  who  has  an  older  to  be  paid  out  of  the  sum  to  be  recovered  in  the  suit 
drawn  upon  the  agent,  who  is  to  receive  such  sum,  is  not  a  competent  witness, 
though  the  order  be  not  accepted.   Peyton  v.  Hallett,  1  Caines^  Rep.  363. 

Where  the  witness  declares  on  his  voire  dire,  that  he  is  interested  in  favour  oi 
the  party  calling  him,  and  that  his  interest  is  so  circumstanced  that  he  cannot  be 
released,  the  witness  ought  not  to  be  sworn,  though  in  strictness  he  ia  not  interested, 
but  if  his  supposed  interest  is  against  the  party  c:dling  him,  he  ought  to  be  admitted. 
The  Trustees  of  Lansingburgh  v.  Willard,  8  Johns.  Rep.  4'28. 

In  Virginia,  it  has  been  held,  that  a  mere  hope  of  bt-nffit  will  not  disqualify,  but 
an  absolute  prou.ise  in  the  event  of  the  suit,  will  render  him  incompetpnl.  Baring 
V.  Reeder,  1  Ren  ^  Munf.  Rep.  1C6 

In  JVorth  CaroUna,  it  has  been  ruUd^thata  witness  conceiving  himself  interested 


233  WITNESSES. 

Ch.  III.  s.  3.  of  the  freeholder.     This  instance  can  hardly  now  be  considered 

Pers.msihiiik-^g  ^,^  authority,  further  than  toward  the  establishment  of  the 

selves,  &c.    general  principle,  that  the  witness  should  have  a  real  and  not  a 

mere  ideal  interest,  before  he  is  rejected  ;  for  that  which  the  law 

(i)Dof  (lem.  formerly  considered  as  a  tenancy  at  will,  is  now,  in  most  cases, 
Wiiiian.s,  converted  into  a  tenancy  from  year  to  year,  which  being  a  per- 
Cowp.  621.  manent  interest,  is  noticed  by  the  law:  and,  therefore,  such  a 
(2) Doe  (lem.  tenant  cannot  be  examined  in  support  of  his  landlord's  posses- 
Jonesv.  gjyi^  .^j^  ^jj,  ^y  defeat  the  action  by  shewing  that  he,  and  not  the 

.5Taunt.  1S3.  defendant  in  the  cause,  is  the  person  in  possession. (2}  And  it 
ri  Per  Twis- ^^^*  '^"g  since  said, 1^3)  that  if  a  landlord  had  promised  another 
den,  1  Mod.  person  a  lease  of  his  land  when  recovered,  such  person  could 
not  be  a  witness ;  for  this,  though  not  an  immediate  vested  in- 
terest, was  nevertheless  a  right  which  might  be  enforced  in  a 
Court  of  Law  in  case  a  verdict  should  be  procured  on  his  evi- 
dence. 

In  these  cases,  the  witness  himself  claimed  a  right;  but  in  a 
(4) Fothering- case  where  the  witness  thought  himself  under  an  honorary  en- 
ham,  V.  p-agement  to  make  good   a  loss   if  it  were  not  repaired  by  the 

Greenwood,     o  o  o  r  j 

1  Stra.  129.  event  of  the  cause,  though  he  knew  he  was  not  legally  bound  to 
.  .  p  .  ,  do  so,  it  was  held  sufficient  to  reject  his  testimony.(4)  Lord 
V.  Stoffles,  C.  J.  Mansfield,  however,  in  a  late  case  which  came  before 
p  144^     '    him,  determined  that  this  honourable  feeling  of  the  witness  did 

not  render  him  incompetent.(5)(n) 
Of  interest  ac-     Another  thing  to   be  observed  in  the  application  of  this  rule 
Uie'^ict'to  be  of  law  is,  that  the  interest  must  exist  at  the  time  when  the  fact 
proved.  which  the  witness  is  to  prove  happened,  or  be  thrown  upon  him 

afterwards  by  operation  of  law,  or  the  act  of  the  party  who  re- 
quires his  testimony  ;  for  if  after  the  event  the  witness  become 
interested  by  his  own  act,  without  the  interference  or  consent 
Vide  Bent  r.  ^f  ^^^  party  by  whom  he  is  called,  such  subsequent  interest  will 

Rep.  27. 

when  in  fact  he  is  not,  will  not  render  him  incompetent.     Harrison  v.  Harrison, 
2  Hayvj.  Rep.  355.     Et  vide  Rogers  v.  Briley,  1  Do.  256.— Am.  En. 

(ii)  A  witness  interested  in  the  event  of  the  suit,  on  the  ground  of  his  being  liable 
OTer  to  the  defendant,  having  Ijt- en  released  by  the  defendant,  was  asked  if  he  did 
not  expect  to  pay  the  judgment  and  costs,  provided  a  recovery  was  had  against  the 
defendant,  to  which  he  replied,  ^^  1  certainly  do."  Held,  that  such  witness  was  in- 
competent to  testify  for  the  del'en(i:uit.   Shillenffer  v.  Bolt,  1  Con.  Rep.  \.\7. 

Where  the  creditor  of  the  plaintitf  was  offered  as  a  witness,  and  the  p  aintiflThad 
no  visible  means  of  payment,  except  by  a  recovery  in  that  suit,  this  will  not  be  suffi- 
cient to  render  him  incompetent.     Benedict  v    Broivmon,  Kirb  Rep.  70. 

An  honorary  engagement,  which  cannot  be  •  ntoicid  at  law,  will  not  renders  wit- 
ness incompetent.  Long  v.  Baillie,  4  Serg,  &  R.  Rep.  227.  S.  P.  Gilpin  qui 
tarn,  Uc.  V.  Vincent,  9  Johns.  Rep.  219. — Am,  Ed. 


WITNESSES. 


S33 


not  render  him  incompetent.(o)     This  exception  to  the  general  Ch.  iii.  s.  3. 
rule  of  law,  is  founded  on  true  principles  of  justice,  for  other-    ^^'.'"tenst 

.  I-    I  ■  1      r  "^quired,  8ic. 

wise  it  would  always  be  in  the  power  of  the  witness,  and  often- 

times  in  that  of  the  adverse  party  himself,  to  deprive  the  person 
wanting  his  testimony  of  the  benefit  of  it.     Thus,  though  a  per- 
son who  knows  the  circumstances  of  a  cause,  lay  a  wager  as  to 
the  event  of  it,(l)  or  a  prosecutor  lay  a  wager  tliat  he  shall  con-(i)  Barlow  ». 
vict  a  defendant,(2)   neither  the  individual  in  the  one  case,  nor^gg      ' 
the  public  in  the  other,  will  be  deprived  of  the  right  which  they 
previously  had  to  the   testimony  of  the  person   so  interesting  p,,x^  i^Sti'a. 
himself.  ^^'^• 

Not  only  must  the  interest  exist  at  the  time  of  the  transaction.  Of  interest 
but  it  must  continue   to   the   time  of  the   trial  ;  and  therefore,  Ii',e  ['i,ne  ol' 
when  a  witness  is  interested  by  being  answerable  to  one  of  the  t'»e  trial, 
parties ;  or  will  have  a  demand  on  that  party  in  case  the  cause 
be  unsuccessful,  a  release   from  the   party   to   the  witness,  or 
from  the  witness  to  the  party,  as  the  case  may  require,  by  taking 
away  his  interest,  restores   his   competency  ;(/>)  and,  in   these 


(0)  A  witness,  who  after  obtaining  his  knowledge  on  the  subject,  voluntarily  be- 
cooies  intei'ested,  will  be  20nipellf<l  to  give  ttstimony.  Tateiri's  exrs.  v.  Lifton  et 
al.  1  Cookers  Hep.  1 15.  Simons  v  Paine,  2  Root^s  Rep.  406. 

If  a  witness  bt  competent  to  attest  a  will  at  the  tirae  ot  the  attestation,  and  after- 
wards becomes  incompetent  by  means  of  an  interest  accruing  since,  he  cannot  be  a 
witness  at  the  trial  of  the  i.ssue  of  devinavit  vel  non,  Hampton  v.  Garland,  '2  Hayiu. 
Rep.  147.  Vide  post,  Ch.  XIV.  s.  2.— Am.  Ed. 

(/»)  A  release  to  a  person  otherwise  interested,  will  cestore  his  competency,  though 
made  at  the  bar  during  the  trial.  Lesof  Lilli/ v.  Kiiitzmilkr,  I  Yeates' Rep.  28, 
Et  vide  Willing  et  al.  v.  Consequa,  \  Peters'  Rap.  307.  Humes  v.  Dai/,  I  Root's 
iiep.  4G6.  Carroll  v.  M'Whorter,  2  Bay's  Rep.  463.  Jexoettf.  Worthington , 
1  Boot's  Rep.  226.  Reading  v.  JMetcalf,  Hardin's  Rep.  535. 

A  release  to  a  baron  •aw\  feme ,  the  husband  beina;  absent,  will  make  they^me  a 
good  witness.  Les.  of  liioren  v.  Keep,  1  Yeates'  Kep.  570. 

A  witness,  once  interested,  will  be  prf.sume<l  to  it- main  so  until  the  contrary  be 
proved  by  a  release.  Mifflin  v.  Bingham,  1  Ball.  Rep.  276. 

A.  guardian,  who  had  given  a  receipt,  was  admitted  as  a  witness  upon  being  re- 
leased.    Pleasants  v.  Peviberton,  2  Do.  196. 

A  slave,  after  he  has  obtained  his  freedom,  is  a  competent  witness  to  prove  a  fact 
which  may  have  happened,  while  he  was  a  slave.  Gwniew.  Dessies,  1  Johns 
Rep.  508. 

An  agent  to  whom  there  is  some  objection  on  the  ground  of  interest,  is  rendered 
unobjectionable  by  a  release   Burlingham  v.  Dyer,  2  Johns.  Rep.  189. 

A  release  executed  to  a  witness,  after  his  examiiution,  does  not  make  him  com- 
petent.    Heyl  V.  Burling,  1  Caines'  Rep.  14.  Doty  v.  Wilson,  14  Johns.  Rep.  378. 

The  endorser  is  a  compett-nt  witness  to  prove  the  hand  writing  of  the  drawer  of 
a  note,  i{  re  leased  by  t/ie  endorsee.  Barnes  v.  Ball,  1   Mass.  Rep  73. 

If  one,  as  agent  for  another,  purchase  a  bill  of  e.xcliange,  and  endorses  it  to  his 
principal,  the  latter  may  call  the  agent  as  a  witness,  if  lie  first  prove  that  he  was 
merely  ag' nt,  ov  give  him  a  release,  Murray  v.  Carrot,  3  Call's  Rep.  373 

H  h 


g34j  WITNESSES. 

Ch.  III.  s.  3.  cases,  it' the  party  who  wishes  to  call  the  witness  tender  a  re- 
..o^L'!!!!i"^S„  lease  to  hitn,  and  he  refuse  to  accept  it ;  or  the  witness  having  a 

_  claim  tender  a  release  on  his  part,  which  is  refused,  he  may  be 

Goodiitie  examined  as  a  witness  ;  for  neither  the  witness  himself,  nor  the 
dem  Fowler  party  in  the  cause,  can  exclude  his  testimony,  by  an  objection 
Dougi.  i;i9.'  on  account  of  his  interest,  when  that  interest  has  in  truth  been 
Benit,  Ba-     rgmoved.* 

ker,  ub.  sup. 

In  an  action  against  the  owner  ot  a  ship,  the  master  is  not  a  competent  witness 
v-ithout  a  release.     Gardner  v.  Smalhvood,  2  Huyw.  Jtep.  349. 

A  partner  with  the  defendant,  in  the  transaction  for  which  he  is  sued,  cannftt  be 
qualififd  tn  be  a  witness,  by  a  release  from  the  defendant,  because  he  is  liable  to  the 
plaintift'.  Tomkims.  Bars,  2  Root's  Rep.  498. 

Where  one  effects  an  insnrance  on  account  of  a  third  person  as  his  agent,  but 
without  any  autiioriiy  from  him,  such  lliird  peison  in  an  action  against  the  insurer 
lor  a  return  of  premium,  on  being  released  by  the  plainliff  from  all  claim  for  the 
premium,  is  a  compettnt  witness.  Stcinbuckw  R/ii?ieltmder,  3  Johns.  Cns.  269. 

A  grantor  in  a  deed,  is  rendered  competent  "o  prove,  as  well  as  disprove  a  fraud 
in  a  ileed  by  'a  release.  Jackson  ex.  d.  JMapes  v.  Frost  et  al.  6  Joints.  Rep  135. 

In  Virginia,  a  grimtnr  with  warranty,  is  inadmissible  to  support  the  title  of  his 
grantee.  Moony.  Campbell,  I  JManf.  Rep.  600. 

Al  the  hearing  of  a  cause  in  Chancery,  and  after  the  argument  had  been  finished 
in  part,  an  objection  was  made  to  the  compeiency  of  a  witness,  whose  deposition 
taken  bifort  tiie  examiner  had  been  rea<l,  the  Court  alloweil  the  \)lainlifFto  prove  a 
release  from  the  witness  of  all  his  interest,  by  the  examination  of  a  witness  Mi^aT'Oce, 
without  any  (irevious  order  or  notice  for  that  purpose.  Harroiuv.  Rldnelander, 
1  Joilns.   Ch.  Rep.  559.     Et  vide  Je-ivltt  v.  Worthingto7i,  1  Root's  Rep.  226. 

Where  a  witness  has  gone  through  his  testimony,  and  it  is  then  discovered  that 
he  is  interested,  he  will  be  competent  if  he  i-elease  his  interest ;  and  he  may  be  re- 
examined.  City  Coimcil  v.  Haywood,  2  JVbtt  &  J\l-  Cord's  Rep.  308. — Am.  Ed. 

•  In  the  case  of  Goodtitle  dem  Fo-wler  v.  Welford,  a  person  who  was  devisee  of  a 
reversion  in  cop)  hold  premises  was  called  to  substantiate  the  will,  by  proving  the 
sanity  of  the  testator,  he  had  surrendered  his  reversion  to  the  use  of  the  heir  at  law, 
but  the  heir  had  refused  to  accept  it,  yet  the  Court  held  him  to  be  a  competent  wit- 
ness; and  Mr.  Justice  Ashhuhst  said,  *'  every  objection  of  interest  proceeds  on  the 
presumption  that  it  may  bias  the  mind  of  the  witness  ;  but  that  presumption  is  taken 
away  by  proof  of  his  having  done  all  in  his  power  to  get  rid  of  liis  interest.'' 

But  in  Holdfast  dem.  Aiistey  v.  Dotvsing,  2  Slra.  1253,  where  an  annuity  of 
20/.  per  annum  was  given  by  will  to  Elizabeth,  the  wife  of  John  Hales,  (or  life,  to 
her  separate  use  ;  and  also  a  legacy  of  10/.  each  to  John  Hales  and  his  wife,  to  which 
will  John  Hales  was  a  subscribing  witness ;  the  Court  of  King's  Bench  held  Hales 
could  not  be  a  witness,  though  the  devisee  had  tendered  the  two  legacies  of  10/. 
each.  The  Chief  Justice,  in  delivering  tlie  resolution  of  the  Court,  said,  "  If  the 
tender  would  be  equal  <o  payment  ot  the  two  money  legacies,  as  it  is  not ;  yet  the 
annuity  charged  upon  the  estate  devised,  would  still  subsist:  and  further  he  ob- 
served, that  the  true  time  for  ascertaining  his  credibility  was  the  time  of  attestation^ 
and  if  then  interested  he  could  not  afterwards  be  a  witness."     - 

Lord  Massfieli),  in  delivering  the  opinion  of  the  Court,  io  Windham  v.  Chet- 
-vynd,  1  Burr.  41",  &c.  commented  much  at  length  on  the  word  credible,  as  ap- 
plied to  witnesses  in  the  Statute  of  Frauds,  on  which  the  decision  of  the  Court,  in  the 
last  case,  in  some  measure  proceeded ;  and  observed,  •'  that  the  word  was  never 
used  as  synonymous  to  cow^eie^i;  but  wheu  applied,  it  presu|)poses  the  evidence 


WITNESSES.  235 

I  shall  conclude  this  section  by  observing,  tliat  a  man  who  is  ch.  Ills.  3. 
interested  in  the  event  of  a  suit,  is  objectionable  only  when  he  ^sa^"*^t  his^^ 
comes  to  prove  a  fact  consistent  with  his  interest ;  for  if  theevi-  _ 

dence  he  is  to  give  be  contrary  to  his  interest,  he  is  the  best  pos- 
sible witness  that  can  be  called,  and  no  objection  can  be  made 
to  him  by  the  parly  in  the  causc.(2)     In  this  case,  however,  'le  ^';'^".'^"''^^- 
might  formerly  have  objected  to  be  examined,  because  his   evi-09i. 

given.  After  ihe  competence  of  a  witness  is  allovvedj  the  considerulion  of  his  cre- 
dibility arises,  and  not  before  ;  and  (lie  oniv  consideration,  in  determining  his  com- 
petency, must  be,  whether  he  was  competent  ai  Ihr  time  of  his  examinatimi?'''' 
His  Lor-dship  said,  ♦'  that  the  decision  of  the  Court  in  thatcnse  went  rather  tipon  the 
particular  circumstances  ot  it,  thm  upon  the  generitl  proposition,  and  that  as  to  the 
annuity  thtre  was  no  release.  There  could  be  no  payment  or  tender  wiihout  the 
interposition  of  a  Court  of  Justice,  because  the  value  depended  upon  uncertain  es- 
timation, but  no  attempt  had  been  there  made  towards  paving  or  tendering  the 
value  of  the  annuity"  It  is  impossible  to  convey,  by  any  abridgment  of  the  case  of 
TVindham  v.  Chetwynd,  the  stibstance  even  of  the  very  elabot-ate  and  elegant  judg- 
ment pronounced  by  Lord  Mansfield  on  that  occasion;  and  the  question  here 
made  having  been  settled  by  Legislative  interfen  nee,  in  consequence  of  the  decision 
in  Aiiftey  v.  Doivsing,  it  becomes  unnecessary  to  state  the  case  at  fength. 
For  by  Stat.  25  Geo.  2,  c.  0,  it  is  enacted, 

1.  That  any  beneficial  devise,  legacy,  estate,  interest,  gift  or  appointment,  made 
to  any  person  being  a  witness,  after  24th  June,  I75.i,  to  any  will  or  codicil,  shall  be 
void,  and  such  person  shall  be  admitted  as  a  witness. 

2.  That  any  creditor  attesting  any  will  or  codicil,  made  or  to  be  made,  by  which 
his  debt  is  charged  upon  land,  shall  he  admitted  asa  witness  to  the  execution  of  such 
will  or  codicil,  notwithstanding  siuvh  charge. 

3.  That  any  person  who  had  aitest'd,  or  should  attest  any  will  or  codicil,  to  whom 
any  legacy  or  berpiesl  was  or  should  be  given,  having  been  paid  or  released,  or  upon 
tender  made  having  refused  to  accept  such  lee:Hcy  or  bi-quest,  should  be  admitted 
as  a  witness  to  the  execution  of  such  will  or  codicil. 

4.  Th;it  any  legatee,  having  attested,  or  who  should  attest  a  will  or  codicil,  and 
■who  should  haye  died  in  the  life-time  of  the  testator,  or  before  he  had  received  or 
released  his  legacy,  should  be  deemed  a  legal  witness  to  such  will  or  codicil. 

After  which  there  is  a  proviso,  that  the  credit  of  every  such  witness,  in  any  of  the 
cases  before  mentioned,  shall  be  subject  to  the  consideration  of  the  Court  hud  jury 
before  whom  he  shall- be  V-xamined,  or  the  Court  of  Equity  in  which  his  testimony 
shall  he  made  use  of,  in  like  manner  as  the  credit"  of  witnesses  in  all  other  cases 
ought  to  be  considered  of  an<l  determined. 

In  Bettison  v.  Bromley,  12  East,  250,  one  of  the  subscriMng  witnesses  to  th»  will 
was  the  wife  of  one  o!  the  executors  who  had  proved  the  will  and  acted  u  der  .fc. 
An  issue  was  directed  to  try  the  sanity  of  the  test^itor,  and  a  c.<se  being  saved,  it  ap- 
peared that  the  witness's  husband  took  no  beneficial  interest  under  the  will  ;  on 
which  the  Court  held,  that  shi'  was  a  credible  witness  within  the  Statute  ol  Frauds, 
and  »  competent  witness  on  the  trinl.  Th  ahove  St!»t.  of  25  Geo.  'i,  does  not  ap. 
pear  tohave  been  ailverted  to  in  the  argument. 

(9)  A  witness  is  competent  wh""  called  on  to  testify  bv  a  part*  ag'dnst  whom  he  is 
interested.  Jackson  ex   d.  Yonng  et  id  v    Vri'denhirgh,  \  Jn'ins.  lief).  1  iQ. 

The  declarations  of  th'-  tenant  or  \>artv  in  iiossession  ar«*  "^ever  rec.'ived  in  evi- 
dence in  support  of  his  t^tle  ;  aliV:r  if  ag»i  i^t  di  ■  interes'  'f  the  person  miiking 
inch  declarations.      Waging  v.  Warren^  I  Johna.  Rep.  340.    Murray  v.  Wilson, 


236  WITNESSES. 

Ch  HI.  s.  3.  dence  might  subject  him  to  future  inconvenience;  but  of  this 
Aga.nsthis   hereafter.*(r) 

own  interest.  ^  ' 


1  Binn.   Rep.   531.     (fells  v.  Tucker,  3  Do.  36G.    BraxtoiVs  adm.  v.  HUyard, 

2  jMunf.  Rep.  49.  Storisw  Metmore,  Kirb.  Rep.  '203.  Cobb  v.  Baldivin,  1  RooV* 
Rep.  53i.  Jfebsterw.  Lee,  5  Mniss.  Rep.  334.  Barker  y.  Prentiss,  &  Do.  i30- 
Jppleton  V.  Bo7/d,  7  Do.  131.  Smyth  v.  jWDow,  1  iJe/,.  Cons*.  C<.  5.  Car.  0,77. 
Barcliiy's  assignees  v.  Carson,  2  Jlayw.  Rep.  243. 

So  a  witiu'ss  that  is  incompetent ,  if  called  by  the  defendants,  will  be  competent,  when 
called  by  t!ie  plaintifT.    Jacobson  v.  Foimtam,  2  Johns.  Rep.  170. 

Tlie  grantee  of  land  is  competent  to  prove  the  deed  fraudulent.  Hills.  Payson 
RMass.  Rep.  559.  Vide Fowfer  v.  Morton,  2  Root's  Kep.  231.— Am.  Ed. 

*  Vide  post,  Ch.  III.  s.  5.— Am.  Ed. 

()■)  A  person  may  be  compelled  to  testify,  though  his  evidence  would  operate  against 
his  interest  in  another  action.  Bairdw  Cochran  et  al.i  Serg.  &  R.  Rep.  3^7 
J\i'ass  V.  Vansiveariugen,  ibid,  192.  Et  vide  Connor  v.  Brady,  Anth.  JV*.  P.  Cas_ 
100,71.  a. 

Sed  contra,  Coofc  V.  Corn,!  Overton''s  Rep.  SiO,  Slorrsv.  Wetmore,  Kirb.  Rep. 
203.  Starr  v.  Tracy  et  al.  2  Roofs  Rep.  528.  Benjamiii  etal.  v.  Hathaway,  3  Con. 
Rep.  5'28.  J\hvigation  Company  \.  City  of  J^'erw  Orleans,  Martin's  Rep.  23. 

But  a  witness  is  not  bound  to  answer  any  question  which  would  subject  him  to 
punisiiment,  or  render  him  infamous  or  disgraced.  The  People  v.  Herrick,  13  Johns. 
Rep.  82. 

Nor  where  it  may  involve  him  in  shame  or  reproach,  ibid. 

Nor  any  question  that  will  impeach  bis  conduct  as  a  public  officer.  Jackson  ex.  d. 
Wyckoff  \ .  Humphrey,  1  Johns.  Rep.  498. 

In  Burr's  trial,  it  was  decided  tn  be  the  province  of  the  Court  to  determine  whe- 
ther the  answei-  to  ihe  question  pi-oposed  to  a  witness,  will  furnish  evidence  against 
him.  \  Burr's  Trial, '2A5. 

In  JVeiv  York,  under  the  Stat.  3d  March,  1787,  which  in  this  respect  is  similar 
to  the  Act  in  the  text,  it  has  been  decided  that  if  either  husband  or  wife  be  a  witness 
to  a  will,  containing  a  devise  or  legacy  to  either,  the  devise  is  void  by  this  Statute, 
and  the  devisee  or  legatee  becomes  a  competent  witness  to  the  will.  Jackson  ex.  d. 
Corder  et  al.  v.  Woods,  1  Johns.  Cos  163. 

Where  a  hvsband  was  a  witness  to  a  will,  containing  a  devise  to  his  leife,  stich 
devise  is  void,  and  the  husband  is  a  competent  witness.  Jackson  ex.  d.  Beach  et  al, 
V,  Dnriand,'2  Do.  314. 

A  devise  to  a  witness  to  a  will,  under  the  Statute  of  JVerv  York,  is  absolutely 
void,  Jackson  ex.  d.  Denniston  et  al.  v.  Denniston,  4  Johns.  Rep.  31 1. 

As  to  the  competency  of  witnesses  to  a  will  at  common  law,  vide  post,  Ch.  XIV. 
s.  2.— Am.  En. 


( 'm  } 


DIGEST  OF  CASES, 


AS  TO   THE   INTEREST  OF  WITNESSES. 


(A.)  In  what  cases  corporators  and  othefs  are  witnesses  on 
public  questions. 

The  general  rule  as  to  this  is,  I  believe,  correctly  stated  in  the  preceding  section ;  Ch.  III.  s.  3, 

and  it  was  well  observed  by  Scroggs  C.  J.  2  Lev.  231,  that  it  cannot  be  a  general  Corporators 

rule  that  members  of  corporations  shall  be  admitted  or  refused  to  be  witnesses  in      ... 

.  '  ,  ■    .,  .  .  .     public  ques- 

actions  tor  or  against  the  corporation,  but  every  case  shall  stand  upon  its  own  cir- JjQf,s_ 

cumstances;  to  wit,  whether  their  interest  be  so  valuable,  as  it  can  be  presumed  it  . 

may  occasion  partiality  in  them,  or  not ;  with  this  preliminary  observation,  I  shall 

refer  to  a  few  of  the  ancient  cases,  and  most  of  the  more  modern  ones.(s) 

1.  In  the  case  of  the  Corporatioji  of  London  for  water-bailage,  1  Ventr.  S5X,  an 
action  being  brought  by  the  Mayor  and  Commonalty  of  London,  for  tonnage  on  wine 
imported  by  the  defendant ;  freemen  of  London  were  offered  as  witnesses  for  the 
plaintiffs ;  and  on  objection  being  taken  to  them  by  (he  defendant's  counsel,  because 
they  were  parties  (the  Commonalty  comprehending  all  the  freemen,)  and  likewise 
interested,  ScRoggs,  Dolbkn,  and  Raymond,  were  of  opinion  that  they  were  wit- 
nesses ;  but  Jones  J.  was  of  a  contrary  opinion  ;  and  the  plaintiff''s  counsel,  having 
other  witnesses,. did  not  examine  them.  But  in  another  case,  where  the  question 
as  to  the  right  of  the  city  to  toll  on  coals  came  in  question,  it  appearing  that  the 
Mayor  and  Sheriffs  had  the  toll  for  the  corporation  at  large,  and  that  no  individual 
citizen  was  benefited  by  it,  the  freemen  were  held  good  witnesses.  Rex  v.  Mayor, 
&c.  ofLondoJt,  2  Lev.  231.  And  so  in  the  case  oi  King  v.  Carpenter,  2  Show,  47, 
all  the  Judges,  except  Jones,  held  them  good  witnesses  in  such  cases.     \ 

2.  Upon  a  trial  at  bar,  of  an  issue  directed  out  of  Chancery,  whether  all  the  manor 
of  S.  If.  was  within  the  county  of  Stafford?  Exception  was  taken  to  some  of  tVie 
witnesses,  who  were  called  to  prove  the  manor-house  within  the  co'int j  of  Salop, 
because  they  were  of  that  county  themselves;  but  it  was  ruled  that  any  person  of 
the  county,  if  he  was  not  within  the  hundred  where  the  manor  was,  might  be  a  wit- 


(s)  The  inhabitants  of  an  incorporated  society,  to  whom  property  is  devised  for 
rtie  support  of  a  school,  are  competent  witnesses  to  attest  the  will.  Cornwally 
Isham,  1  Day's  Hep.  35. 

The  confessions  of  individual  members  of  a  corporation  aggregate,  a  party  to  the 
suit,  which  were  not  made  in  the  exercise  of  any  corporate  duty, cannot  be  received 
in  evidence.  Hartford  Bank  v.  Hart,  3  Dny^s  Rep.  492. 

The  acts  of  the  directors  of  a  turnpike  company,  not  authorised  by  a  vote  of  the 
corporation,  are  inadmissible  as  evidt-nce.   Waterbury  v.    Clark,  i  Day's  Rep.  198. 

In  an  action  of  trespass  brought  against  certain  inhabitants  of  5to<e«  Island,  for 
building  fishin};  hnts,  &c.  on  land  claimed  and  possessed  by  the  plaintiff",  an  inhabitant 
of  Staten  Island,  is  not  a  competent  witntss  for  the  defendants,  to  prove  a  common 
right  in  all  the  inhabitants  to  the  fishery  in  question.  Jacobson  v.  Fountain  et  al. 
2l'Jms.  Rep.irO.—.Vyi.Eo. 


2B8  WITNESSES, 

(Jli.  III.  s.  3.  '"^^^  •  '*"■  '"^^  *o  the  county  taxes,  every  Iiundred  pays  its  proportion  ;  bnt  as  to  hun- 
(^orporalors  dreds,  there  are  particular  charges.  But  it  being  afie.rwards  proved  that  there  was 
and  others  on  »  general  tax  in  each  county,  for  maintenance  of  the  suit,  no  one  who  was  charged 
pnbhcques-  thereto,  was  permitted  to  be  a  witness.  The  Cmmtij  of  Salop  v.  The  County  of 
^  Stafford,  1  Sid.  192.     By  Slat.  8  Geo.  2,  c.  16,  s.  15,  hundredors   are  made  wit- 

nessts  for  the  Iiundred  in  actions  against  them  ;  on  the  Statute  oi  /me  and  cry,  and 
by  Stat.  1  Jl7i7ie,st.  l,c.  18,  s.  13,  inhabitants  of  any  county,  division,  &c.  are  made 
good  witnesses  in  indictments  tor  not  repairing  6rn/§-es,  where  the  question  is,  whether 
the  county,  &c.  or  a  private  person  is  hable  to  repair  ?  Surveyors  of  the  highways  in 
all  cases  relative  to  the  execution  of  the  Highway  Act,  and  inhabitants  on  trials  for 
oftences  committed  against  it,  are'  made  witnesses  by  the  express  provisions  of  the 
Statute.  Vide  Stat.  13  Geo.  3,  c.  "8,  s.  69.  "7.  The  like  piovisions  is  made  in  the 
ease  of  inhabitants  as  to  offences  committed  against  the  general  Turnpike  Act.  Vide 
13  Geo.  3,  c.  84.  a.  74.  By  Stat.  3  &  4  W.  &  M  c.  11,  in  all  actions  to  be  Inought 
in  the  Courts  of  Weafnmister,  or  at  the  assizes,  for  money  mis-spent  by  churchwar- 
dens, the  evidence  of  parishioners,  other  than  such  as  receive  alms,  shall  be  taken 
and  admitted  ;  and  by  Slat.  27  Geo.  3,  c.  29,  parishioners  are  made  competent  wit- 
nesses in  all  cases  where  penalties  not  exceeding  20/.  are  given  to  the  parish  ;  and 
lastly,  by  Stat.  54  Geo.  3,  c.  170,  s.  9,  it  is  enacted,  that  no  inhabitant  or  person 
rated  or  liable  to  any  rates,  or  .cesses  of  any  district,  parish,  township  or  hamlet,  or 
wholly  or  in  part  maintained  or  supported  thereby,  or  holdmg  or  exercising  any 
office  thereof  or  therein,  shall  before  any  Court  or  person  or  persons  whatsoever, 
be  deemed  or  taken  to  be  by  reason  thereof  an  incompetent  witness  for  or  against 
such  district,  parish,  township,  or  hamlet,  in  any  manner  relating  to  such  rates  or 
cesses,  or  to  the  boundary  between  such  district,  &c.  and  any  adjoining  district,  &e. 
or  to  any  order  of  removal  to  or  from  such  district,  &c.  or  concerning  any  bastards 
chargeable  or  likely  to  become  chargeable,  &c.  to  such  district,  &c.  or  to  the  reco- 
very of  any  sum  or  sums  of  money  for  the  charges  and  maintenance  of  such  bastardss 
or  to  ihe  election  or  •ippoiniment  of  any  officer  or  officers  of  any  such  district,  &c. 
any  law,  &c.  to  the  contrary  in  any  wise,  notwithstanding. 

3.  Before  the  making  of  the  above  Statutes,  it  was  held,  that  at  conimon  law, 
where  a  person  is  not  rated,  though  ratable,  he  is  a  witness.  Case  before  Burland 
J    at  Salisbury,  cited  4  T.  Rep.  20.(«) 

4.  On  an  appeal  against  a  poor  rate,  becatise  certain  persons  were  not  rated ;  that 
a  parishioner,  who  was  liable  to  be  rated,  but  not  in  fact  rated,  was  a  competent  wit- 
ness to  prove  the  ratability  of.the  persons  omitteil.     Rex  v.  Prosser,  4  T.  Sep.  17. 

5.  So  that  an  inhabitant,  who  was  not  rated,  was  axompetent  witness  on  an  appeal 
between  his  own  parish  and  another.  Hex  v.  JJttle  Ltimley,  6  T.  Hep.  157;  though 
left  out  of  the  rate  for  the  mere  purpose  of  making  him  a  witness.  Rex  v.  Inha- 
hit  ant  !t  of  Kir  (If or  d,  9,  Eaut,  559.  But  where  his  son  was  rated  for  the  property 
held  b'.  h:iii  he  was  tieemeil  incompetent.  Rex  v.  Killerby,  10  FMst,  292. 

6.  So  such  pi  rson  was  considered  a  good  witness  lo_  extend  the  boundary  of  his 
parish,  on  a  qjiestion  as  to  the  line  of  boundary  bttween  two  adjoining  parishes. 
Deacon  \.  Cooke,  T(mnto?i  Sp.  ./?«w"j.  1789,  cited  76u/.  562.  Since  the  passing  of 
the  last  Statute  it  has  bet  n  holden,that  on  aj^nestion  whether  certain  lands  belonged 
to  an  indi>idual  or  to  certain  trustees  in  aid  of  the  poor  rates,  inhabitants  were  ad- 
missible witnesses.  JHeredithw  Gilpin,G  Price,  2iC}. 

7.  In  trespass,  the  plaini  iff  claimed  as  lessee  of  the  corporation  oi  Kingston,  ^^ho 
as  lords  of  the  manor  had  approved  the  land  in  question,  ajid  it  was  ruled  that  a  fiee- 
man  could  not  be  a  witness  to  prove  sufficiency  of  common  left,  because  the  rent 
jTQUst  be  reserved  to  the  use  of  ihe  corporation.  Burton  v.  Hinde,  5  T.  Rep.  174, 

8.  I'he  question  being,  whether  the  plaintiff  was  entitled  to  be  elected  common- 


(0  S.  P.  Falls  V.  Belknap,  1  Johns.  Rep,  486.— Am.  Ed. 


WITNESSES.  230 

council-man  of  .^/'/'feii/.^  ttie  defnda' t  attemptcl  to  disqualify  him,  by  setiTing  up  Ch.  HI.  s  3. 

two  qualiticatioiis  whiih  lie  had  not,  \iz.  a  burg;ige  tenure,  and  being  an  inhabitant ;  Corpoiators 

and  to  prove  this,  called  one  who  was  an  inhabitant,   but  who  liad   not  a  burgage  and  others  on 

tenure.     It  was  objected  that  he  was  no  witness  to  narrow  the  right,  and  confine  it  j'."    "^  ques- 

to  burgage  tenants  and  iniiabitants,  having  one  of  these  qualifications  himself,  and 

therefore  so  far  interested,  as  lie  was  nearer  the  right  he  Si-t  up  than  other  persons. 

But  the  Coui't  said,  thei'e  was  a  necessity  of  allowing  sucli   people  in  a  question  of 

tbis  nature,  since  they  must  best  know  the  right;  besides  he  was  in  eff-xt  a  witness 

against  himself,  by  saying,  though  I  am  an  inh^bitMnt,  yet   I  have  no  right  to   be 

chosen,  because  I  have  not  a  burgage  tenure.  Stevenson  v.  JVevijison,  1  Stra.  583  ;  2 

Lord  Raym.  1353,  S-  C. 

9.  Upon  information,  in  nature  of  quo  luarvanto,  the  question  on  which  tlie  de- 
fendant's title  turned  was,  whether  the  former  Mayor  had  a  right  to  name  two 
elisors  to  return  a  jury,  if  the  town  clerk,  who  might  nominate  one,  was  absent  or 
refused  ?  The  second  elisor  nominated  by  the  Mayor  was  called  as  a  witness,  and  it 
was  objected  to  his  competency,  that  he  havjng  acted  under  such  a  nomination  was 
liable  to  an  information,  and  tiierefore  could  not  be  examined.  The  Judge  allewed 
the  objection  ;  but,  on  motion  for  new  trial,  the  Court  thought  it  went  only  to  his 
credit,  and  granted  a  new  trial.  Rex  v.  Robins,  2  Stra.  1069. 

10  But  in  the  case  of  the  Company  of  Carpenters,  &c.  v.  Ilayward,  Dovffl.  360, 
where-an  action  was  brought  by  a  corporation  on  a  custom,  a  stranger  who  had 
acted  in  defiance  of  the  custom  was  held  to  be  an  incompetent  witness. 

11.  On  the  trial  of  an  issue  taken  on  the  return  to  a  itfandamns  to  admit  a  man  to 
his  freedom,  as  the  eldest  son  of  a  freeman,  the  father  was  held  to  be  a  good  wit- 
ness to  prove  the  custom  for  sons  of  freeman  to  become  fr^e.  Rex  v,  J^ayor  and 
Burgesses  of  Oakhumtiton,  \  Jf'ils.3S2. 

12.  Rex\.  Philips  and  Archer,  at  Canib.  per  Lee  C.  .T.  Bid.  JV.  P.  289,  the 
question  being,  whetbt-r  the  defendants  had  a  right  to  be  freemen,  though  it  ap- 
peared there  were  commons  belonging  to  the  freemen,  yet  an  alderman  was  per- 
mitted to  prove  them  not  freemen,  it  appearing  that  none  hut  aldermen  luere  privy 
to  the  transactions ,  in  making  persons  free.  > 

13.  In  6ome  cases,  freemen  interested  as  such,  have  been  deemed  competent  when 
disfranchised,  as  where  the  company  of  sadler's  brought  debt  on  Statute  1  Jac.  c, 
22,  against  a  man,  to  recover  a  forfeiture,  for  making  saddles  insufficiently,  three  of 
the  company  being  disfrancliised,  and  declaring  on  the  voir  dire,  that  tliey  had  no 
assurance  of  being  restored,  were  admi'tted  as  witnesses.  Sadlers  Company  v.  Jones, 
6  J\[od.  165.  But  where  a  freeman  was  called,  and,  on  an  objection  to  his  testi- 
mony, the  corporation  jjroduced  a  judgment,  in  the  Mayor's  Court,  whereupon  a 
scire  facias  being  awarded,  and  two  nihils  returned,  he  was  adjugded  to  be  dis- 
franchised ;  the  man  saying  tiiat  he  was  not  summoned,  and  knew  nothing  of  the 
disfranchisement,  Holt  C.  J.  would  not  permit  him  to  be  examined.  Brown  v. 
Corporation  of  London,  11  j\Iod.  22H. 

14.  Oil  a  prescription  of  a  right  of  common,  as  appurtenaiit  to  the  bouse  of  A.,  B. 
who  bas  a  similar  house,  is  a  good  witness  ;  but  if  it  be  claimed  by  custom,  as  appur- 
tenant to  all  houses  similar  to  that  of./?.,  B.  would  not  be  a  witness,  because  the  re- 
cord-would, in  this  case,  be  evidence  of  his  right.  Btd.  JV*.  P.  283.  Vide  John  v. 
Fotliergill,  Append.  But  where  an  action  on  the  case  was  brought  by  a  commoner 
claiming  a  prescriptive  right  against  an  owner  of  adjoining  land  lor  not  lepaitiug  bis 
fences,  and  the  question  was,  whelber  he  was  liable  to  such  npaii-s  ?  It  was  held 
that  other  commoners  could  not  be  witnesses,  because  by  (-stablisbing  such  a  lialjility 
they  increased  the  value  of  the  common.  Anscombv.  Shore,  1  Taunt.  9.M .  So 
where  an  issue  was  directed  to  try  whether  the  mhabitants  of  ^.  were  immemorially 
bound  to  repair  a  chapel,  the  owner  of  the  inheniaiice  is  not  a  competent  witness, 
although  he  has  leased  his  estai'-  and  is  not  rated,  f<;r  he  bas  an  int>-rest  in  discharg- 
ing the  inheritance  fion»  a  permanent  burthen.  Rhodes  v,  Ai7iswoj'th,  I  B.&  A.  87, 
— Vide  ante,  p.  220. — Am.  Eu, 


g^O  WITNESSES. 

Ch.  HI.  s.  b. 

Servants  and  /»,        «  »    /» 

Agents.  (B.)  Servants  and  Jl gents. 


1.  A  Banker's  clei-k,  having  paid  morf  than  whs  due  on  a  bill,  was  held  a  good 
witness  in  an  action  brought  by  the  banker  lo  recoTer  back  the  surplus;  and  this 
from  necesnity.  Martin  v.  Horrel,  2  Stra  647.  So  where  a  person  g^-nt  rally  in- 
trusted his  s>in  to  receive  money  for  him,  whodid  so,  and  delivered  it  to  thedefend. 
ant ;  in  an  action  of  trover  to  recover  it,  the  son  was  held  a  good  witness.  Anony- 
mous, Sulk.  289. 

2.  The  plaintiffs  servant  having  given  money  of  his  master's  to  the  dtfendunt  for 
illegal  insurances  in  the  lottery,  was  admitted  a  witness  for  his  master,  on  being' 
released  by  him.  Note,  this  was  not  the  case  of  an  ordinary  transaction  in  business, 
and  therefore  the  release  appears  to  have  been  necessary  to  make  him  a  witness. 
Clarke  v.  Shee,  Covip.  199. 

3.  A-  sells  goods  to  B.  and  aftTwards  C.  desires  D.  to  pay  A.  and  promises  to 
repay  him.  D.  pays  A.  and  afterwards  B  allows  the  money  to  D-  in  account.  In 
an  action  against  C  ,  B.  was  called  to  prove  the  account,  (it  amountmg  to  payment,) 
and  it  was  objected  that  the  contract  being  originally  only  between  A.  and  B-,  B.  was 
still  liable  to  ^.  and  was  therefore  swearing  to  discharge  himself;  but  the  Chief 
Justice  said,  he  would  allow  hino  to  be  a  witness  to  prove  the  payment  as  a  servant 
to  C.  Bronvnson  v.  Avery,  1  8tra.  506. 

4.  A  factor,  who  was  to  nave  a  poundage,  according  to  the  amovnt  of  the  sale 
was  held  a  good  witness  to  prove  the  contract  in  an  action  by  his  principal.  Dixon 
V.  Cooper,  3  Wils.  40.  Ami,  in  like  manner,  a  factor,  who  was  to  have  all  above, 
a  certain  sum,  was  admitted  to  prove  a  contract  above  that  sum,  by  Heath  and 
Rof>KE  J.  (dissent.  Eyhe  C.  J.)  for  this  was  still  in  the  ordinary  course  of  business. 
Benjamin  v.  Porteus,  2  H.  Black.  590.  ^  »  , 

5.  A.  having  received  money  as  for  the  use  of  B.  was  admitted,  in  an  action  by 
B.  for  the  money,  to  prove  that  he  was  agent ;  not  on  the  ground  of  necessity,  but 
because  he  stood  indifferent  in  point  of  interest  between  the  i)arties,  being  liable 
either  to  pay  the  money  received  to  the  plaintiff,  or  to  refund  it  to  the  defendant. 
Ilderton  v.  Atkinson,  7  T.  Rep.  480.  So  the  captain  of  an  Indiaman,  having  bor- 
rowed money  of  the  plaintiff,  was  permitte<l  to  prove  it  borrowed  for  the  use  of  the 
ahip,  in  an  action  against  the  owners,  on  the  principle  that  he  was  indifferent  be- 
tween the  parties,  being  in  all  events  answerable  to  one  or  the  other.  Evans  v. 
Williams,  7  T.  Rep.  481,  note  (c).  So  the  master  of  a  ship  for  which  the  plaintiff 
had  supplied  provisions,  was  admitted  so  prove  that  the  defendant  was  liable  as  be- 
ing owner.  Roivcroft  v.  Basset,  Sitt.  at  GuHdhall,  after  Hit.  T-  1802,  cor.  Lb 
Blanc,  J.  JIf.  5.(m-)  And  where  an  endorser  of  a  note  had  received  money  fiom 
the  drawer  to  take  it  up,  it  was  held  that  he  was  competent  to  prove,  in  an  action 
against  the  drawer  by  an  endorsee,  that  he  had  sat  sfied  the  note,  being  either  liable 
to  the  plaintiff  on  the  note,  if  the  action  were  defaied,  or  to  the  defendant  for  mo- 
ney had  and  received,  if  the  action  succeeded.  Bivt  v.  Kershaw,  2  Etast,  458.  But 
where  a  bill  was  accepted  for  the  accommodation  of  the  drawer,  the  Court  of  Com- 
mon Pleas  held  that  he  was  not  a  competent  witness  to  prove  it  usurious,  having  a 
greater  interest  to  defeat  the  action  on  account  of  the  costs  he  would  be  liable  'o  pay 
the  acceptor,  than  to  support  it,  whereby  he  would  be  liable  to  the  bill  without 
costs.  Jones  v.  Brook,  4  Taunt.  464.  Vide  ante,  228,  note  (•). 

6.  A.  delivered  South  Sea  bonds  to  B.  from  whom  they  were  stolen  :  when  pre- 
sented for  the  payment  of  the  interest,  they  were  stopped  by  C.  (a  clerk,)  a>:ainst 
whom  D,  the  holder,  brought  trover,  which  the  Company  defended,  on  having  a 


{u)  Ante,  224. 


WITNESSES.  ^ii 

bond  of  imfemnily  from  B.    This  bond  prevented  S.  from  Ining  examined  as  a  q|,   jjj   g  3 
witness  in  the  action  Hgainst  C.  Ball  v.  Bostoch,  1  Stra.  575.  Servants  and 

But  ^.  having  afterwards  brought  trover  against  />.,  £.  was  hehl  a  good  witness       Agents, 
in  such  action,  ibid.  — — — — . 

7.  In  an  action  brought  against  tlie  master  for  an  injury,  by  the  negligence  of  the 
servant,  he  is  not  a  witness  for  his  master  until  released.  Therefore  a  bailiff,  to 
whom  a  warrant  is  directed,  cannot  be  examined  for  the  Sheriff  iti  an  action  for  es- 
cape. Powell  \.  Hard,  1  Stra.  650.  2  Lord  Raym.  1411.  Nor  a  servant,  whose 
business  it  is  to  take  care  of  the  pipes  of  the  JVVjt>  Rive"  Company,  through  a  defect 
of  which  tile  plaintiff  met  with  an  accident.  Greeny.  JVexu  River  Company,  4  T. 
Rep.  589.  But  if  the  master  release  the  servant  in  such  case,  he  is  a  good  witness. 
Jervis  v.  Hayes,  2  Stra.  1083. 

8.  So  in  Rii  action  for  sinking  a  b^rge,  on  board  of  wliich  the  plaintifTbad  a  cargo 
of  corn,  the  master  is  a  good  witness  when  released  by  the  plaintiff.  Spitty  v. 
Boiuens,  Peake^s  JV.  P.  Cas.  53. 

9.  But  without  such  release  he  is  not ;  and,  in  like  manner,  in  an  action  on  a  po- 
licy on  goods,  on  board  a  ship,  the  master  and  owner  was  held  not  a  competent  wit- 
ness to  prove  the  ship  seaworthy,  without  a  release  l)y  the  plaintiff.  Rotheroe  v,  El- 
ton, Peake'sJY.  P.  Cas.  84.  Fox  v.  Lnshingtori,  ibid.  note. 

10  So  in  an  action  on  a  policy  of  insurance,  stating  a  loss  by  the  barratry  of  the 
master,  he  cannot  be  a  witness  for  the  underwriters  to  prove  the  dcvjuion  made  with 
the  consent  of  the  owners,  unless  released  by  the  defendant,  for  if  the  |)laintiff  suc- 
ceeds on  his  barratry,  he  is  answerable  to  the  underwriters.  Thompson  v.  Bird^ 
1  Esp.  Cas.  339. 

11.  A  servant  for  beating  whom  his  master  has  brought  trespass,  may  be  a  witness 
to  prove  the  beating.  Deal  v.  Harding,  1  Stra.  595,  and  Leivia  v.  Fog,  2  Stim.  944 
contrary  to  Damtey  v.  Westhonse ,  1  Stra.  414,  which  is  over-ruled  ;  and  in  like 
manner,  the  plaintiff's  daughter  being  seduced,  is  a  goo<l  witness  to  prove  the  seduc- 
tion. Cock  V.  Wortham,  2  Stra.  1054;  but  she  cannot  give  evidence  of  a  promise 
of  marriage  to  increase  the  damages  (x) 

12.  On  an  information  for  importing  teas  from  a  country  in  which  thev  were 
grown,  contrary  to  the  Act  of  Navigation,  the  defendant  called  the  master  of  the 
ship:  but  his  evidence  was  rejected,  though  there  had  been  no  information  against 
the  ship,  becausi-  by  the  Statute  it  is  forfeited,  and  he  would  be  answerable  over  to 
the  owners.  Fuller  v.  Jackson,  Bnmb.  140.  In  like  mar  ner,  m  an  inforniatioi.  tor 
impoi  ting  India  silks,  the  master  of  the  ship  was  rejected,  because  he  being  ao 
abettor,  would  be  liable  to  a  penalty  of  500^.     Rickson  v    Sa7iforth,  cuei\ibid. 

So  in  an  informatiou  for  importing  brandy  in  nnsizable  casks,  the  master  of  the 
ship  wa,=  rejected,  being  liable  to  a  penally  of  100/.  for  breaking  bulk.  Spoiip-  v. 
Fasting,  Bunb.  203. 

Note.  It  is  observed  in  the  report  of  the  case  of  Fuller  v.  Jackso7i,  that  this  ob- 
jection never  was  allowed  before;  and  a  case  is  mentioned  to  have  happened  at  the 
same  sittings,  where  on  the  like  objection  being  made  to  the  master  of  a  Citrt  (which 
by  Stat.  6,  and  8  Geo.  1,  is  forfeited)  for  tunning  goods,  it  was  disallowed. 

13.  In  actions  by  iid(,riners  for  selling  coals  witfiout  measuring  hy  the  bushel,  the 
servants  are  witnesses  for  the  master,  nniwiihstanding  3  Geo  2,  inflicts  a  penalty 
upon  them  for  not  doing  it ;  though  Etke  J.  did  on  that  account,  in  two  or   three 


(x)  In  an  action  of  tresspass  for  taking  and  impounding  th"  hogs  of  the  plKintiff, 
the  defendant  proved  that  he  acted  as  the  agent  or  se'vant  of  G,  on  whose  land  the 
hogs  were  found,  and  offered  G.  as  a  witness,  after  executing  a  reb^ase  to  him,  to 
prove  that  the  hogs  were  taken  damage  feasant ;  and  it  was  held,  that  G.  was  a 
competent  witness,  llasbroiick  v.  Lown,  8  Jo/tna.  Rep,  377.  Et  vide  Carrotty, 
.M' fVharter,  2  Bay's  Rep.  463.— Am,  Ed. 
li 


g^3  WITNESSES. 

.       ,    instances,  refuse  to  receive  thera.     Per  Lee  C.  J.  in  £.  7.   Comp.  v.  Gosling,  Bui. 
Servanl's'anci  A'  Z'- 289.(t/) 


Agents. 


(y)  An  auctioneer  wlio  has  sold  goods  to  ^4.  and  committed  them  to  the  care  of 
his  servi.nt,  to  be  delivered  to  the  ven<lee  on  his  pert'orming  the  conclitions  of  sale, 
is  a  competent  witness  for  the  plaintiff  in  an  action  of  replevin  brought  bj'  the  ser- 
vant aiiainst  A.  who  had  obtained  possession  of  them  by  artifice  and  deceit.  Harris 
V.  Smith,  3  Serg.  &  R.  Rep.  20. 

A  ship's  agent  in  a  foreign  port,  is  a  good  witness  to  prove  by  whom  goods  were 
shipped.  Andre  v.  Care,  3  Veates'  Rep.  101.  Vide  ante,  p.  40.  n.  {i)  p.  221.  et 
seq. — Am.  Ep. 


(C)  Witnesses  in  cases  of  bankruptcy  and  insolvency.  Vide  (E)  8. 

Is  cases  of  bankruptcy,  it  is  the  obvious  interest  of  the  creditor,  to  increase  the 
divisible  fund  of  the  bankrupt,  and  the  bankrupt  himself  also  has  the  same  interest, 
because  he  thf  reby  increases  his  own  allowances  ;  for  this  purpose,  therefore,  nei- 
ther are  admitted  as  witnesses  during  the  continuance  of  that  interest ;  and,  by  the 
policy  of  the  bankrupt  laws,  the  bankrupt  himself  cannot  at  any  time  give  evidence 
to  support  his  own  commission. (:) 

(z)  A  person  who  has  become  a  bankrupt,  and  been  discharged  in  Great  Britain, 
and  against  whose  property  in  J\'ew  York  3in  attachment  has  issued,  under  the  ab- 
sent and  absconding  debtor  Act,  cannot  be  a  witness  in  favour  of  his  trustees  under 
that  Act,  although  lie  has  released  his  interest  in  the  surplus  of  his  estate  to  his  assig- 
nees in  Greiit  Britain,  and  to  his  trustees  here.  Graves  et  al.  v.  Delaplaine,  14 
Johns.  Rep.  146. 

A.  who  had  been  discharged  under  the  bankrupt  Law,  and  whose  estate  would 
not  probably  pay  more  than  25  per  cent.,  was  held  a  competent  witness,  in  a  suit 
brought  by  the  assignees  of  B.  a  bankrupt,  against  whom  A.  had  proved  a  debt 
under  the  commission.  Phcenix.  v.  Assignees  of  Ingraham,  5  Johns.  Rep.  412. 

"Where  a  debtor  assigned  his  propeity  to  A.  for  his  and  the  benefit  of  his  other 
creditors,  the  debtor  is  not  a  competent  witness  for  A.  unless  he  release  all  his  in- 
terest in  the  fund.  ^Ifwrn  v.  J\''eruson,  Anth.  .V.  P.  11. 

A  bankrupt  who  endorsed  a  note  before  his  bankruptcy,  and  who  has  obtained 
his  certificate,  is  a  goo'l  witness  for  the  endorsees  in  an  action  on  the  note  against 
the  maker.  Murray  et  al  v.  Marsh  et  al.  2  Hny-w.  Rep.  290. 

A  bankrupt,  if  he  release  any  benefit  by  an  increase  of  the  fund,  may  be  a  witness 
in  an  action  by  his  assignees.  Marks  v.  Barker,  C-  C.  Oct.  1804,  M  S.  Rep. 

He  may  be  a  witness,  although  the  names  of  his  assignees  were  not  substituted  in 
the  action,  immediately  on  his  obtaining  a  certificate  of  conformity.  Browne  v.  Ins. 
Co.  Penn.  4  Yeates'  Rep.  119. 

So  where  the  plaintiff  had  become  a  bankrupt  after  suit  was  brought,  which  was 
continned  by  his  assignees.  M-  Clenachan  v.  Scott,  cited  2  Dall.  Rep.  1"2,  n. 

A  petitioning  creditor  for  a  commission  "f  bankruptcy,  is  a  competent  witness  to 
prove  his  debt,  on  whii-h  the  commission  of  bankruptcy  issued,  in  an  action  in  the 
event  of  which  he  is  not  interested.  Farrington  v.  Farrington,  iMass.  Rep.  157. 
Where  the  trustee  of  an  insolvent  ilebtor  sues  for  a  horse  belonging  to  the  insol- 
vent's estate,  the  insolvent  is  not  a  competent  witness  to  prove  the  property  in  him- 


WITNESSES.  a±o 

1.  Agreeable  to  these  principles,  it  lias  been  held,  that  upon  an  issue  out  of  Chan-  r,.    ^r 
eery,  to  try  whether  a  bankrupt  has  lost  money  by  gaming,  a  creditor  of  the  bank-     iJ o.    ',c  ^f  * 
riipt  cannot  be  examined  as  a  witness  to  prove  the  fact  of  his  having  so  lost  money,    barikruptcy 
for  he  thereby  increases  the   divisible  fund,   by  depriving  him  of  his  allowance.      "»d  insol- 
Shtittleivorth  v.  Bravo,  1  Stra.  507.  vency. 

2.  But  in  an  action  against  a  man  who  pleads  his  discharge  under  an   Insolvent  "  ■ 
Act,  another  creditor,  wlio  is  no  party  to  the  cause,  may  be  admitted   to  prove  the 
defendant  not  within  the  description  of  thir;  Act  ;  for  he  is  not  immediately  inter- 
ested, nor  will  the  record  be  evidence  for  him  in  any  future  action  of  his  own.  JVov- 

cot  v.  Croot,  1  Stra.  650. 

3.  Neither  can  a  creditor  prove  the  act  of  bankruptcy,  for  he  is  interested  to  sup- 
port the  commission,  {Koopes  v.  Chapman,  Peakes's  Cas.  80,)  unless  he  release 
his  debt  to  the  assignees,  in  which  case  he  may,  though  the  bankrupt  himself  is 
party  to  the  action  in  which  the  commission  is  disputed,  ibid.  Ambrose  v.  Clendo7i, 
Cas.  Temp.  Hard.  267.  A  creditor,  who  has  sold  his  chance  of  recovering  a  debt, 
and  whose  interest  is  thereby  removed,  is  a  good  wiiness  to  prove  the  petitioning 
creditor's  debt,  in  an  action  by  the  assignees,  [Grander  and  another,  assic^nees  v. 
Furlong-,  2  Black.  1273  ;)  or  to  increase  the  fund  (Heath  v.  Hall,  4  Taunt.  362.) 
And  one  who  has  not  proved  under  the  commission,  is  competent  to  support  it 
(though  not  to  increase  the  fund)  without  giving  any  release.  But  a  petitioning; 
creditor  camiot  be  a  witness  lo  prove  the  rgularity  of  the  commission  though  he  does 
release,  lor  he  still  remains  liable  on  his  bond.   Green  v.  Jones,  2  Cumpb.  411. 

4'.  The  bankrupt  himself  cannot,  in  any  case,  be  permitted  to  prove  his  own  bank- 
ruptcy, the  petitioning  creditor's  debt,  or  his  trading,  though  he  has  obtained  his 
certificate,  ami  released  his  surplus  and  allowance.  Field  y.  Curtis,  2  Stra.  829. 
Chapma7iv.  Gardner,  2  H.  Black. '279.  And  if  a  joint  commission  issue  against 
two,  one  cannot  be  called  to  prove  an  act  of  bankruptcy  committed  by  the  other. 
Flower  v.  Herbert,  cited  2  //  Black  2"9.  But  if  the  assignees  prove  an  act  to  have 
been  committed  by  the  supposed  bankrupt,  which  is  equivocal,  he  may  be  called  as 
a  witness  by  the  other  side  to  explain  the  act,  and  shew  ihat  lie  did  not  thereby  be- 
come a  bankrupt.   Oxlade  v.  Perchard,  1  Esp.  Cas.  287. 

5.  As  a  bankrupt  cannot  increase  his  fund  while  interested,  it  follows  that  he 
cannot,  in  any  case,  be  examined  for  his  assignees,  while  uncertificated;  but  after 
certificate,  he  mav  release  his  allowance  and  surplus  to  his  assignees,  and  thereby 
be  made  a  competent  witness  to  increase  the  fund,  for  he  has  then  no  interest  in  it. 
JButler  V.  Cooke,  Cotvp  70.  So  if  his  allowance  has  been  paid,  he  is  competent 
for  he  is  not  bound  to  refund.  Russell  v.  Russell,  1  BroTon,  269.  But  where  a  se- 
cond commission  has  issued,  he  cannot  be  a  witness  to  increase  the  fund  under  it, 
till  he  has  actually  paid  15s.  in  the  pound  ;  for  his  future  effects  are  not  discharged 
by  his  certificate  till  that  is  paid,  and  therefore  he  is  still  interested  to  increase  his 
fund,  notwithstanding  his  certificate  and  release.  Kennet  v.  Green-woUers,  Peake'^s 
Cas.  3. 

6.  Bat  to  decrease  his  estate,  as  by  proving  in  an  action  against  A.  that  he  was 
the  debtor,  a  bankrupt  is  a  good  witness,  though  he  has  not  obtained  his  certificate, 
Walker  v.  Walker,  cited  Cowp.  70. 

self,  though  he  appeared  by  his  schedule  to  be  entitled  to  no  surplus.  Bussy  v.  Ady, 
3  Har.  &  MHen.  Rep.  97. 

A  bankrupt  is  a  competent  witness  to  diminish  the  fund,  out  of  which  his  allow- 
ance proceeds,  because  it  is  against  his  interest.  Barclay''s  assignees  v.  Carson, 
2  Bay's  Rep.  '<!43 

Where  the  plaintiff  had  become  a  certificated  bankrupt,  since  the  bringing  of  the 
suit,  and  the  assignees  liad  carried  on  the  smtaiul  entered  into  security  for  the  costs, 
the  Court  admitted  him  as  a  witness.  M'Ewen  v,  Gibbs,  4  Ball.  Rep.  137.— 
Am.  Ed. 


g4^!  WITNESSES. 

Cn.  m.  s.  3, 
On  indict- 

forgery.  (D)  Of  witnesses  on' indictments  for  forgcries. 


1.  The  name  ni  J},  being  forged  to  a  receipt,  he  was  held  an  incompetent  witBess 
to  disjirove  llie  hand  writing  on  an  indictment  lor  the  forgery.  Hex  v.  HusaeU; 
Leaches  Cro.  Cas.  10. 

2.  So  where  a  person,  having  a  bill  of  exchange  in  his  possession,  endorsed  a  re- 
ceipt with  a  fictitious  name  on  it,  tlie  acceptor  was  held  not  to  be  a  competent  wit- 
ness to  prove  the  payment,  without  a  release  from  the  endorsee.  Rex  v.  Taylor, 
ibid.  255. 

3.  So  the  person  whose  hand  writing  was  forged  to  a  letter  of  attorney  to  receive 
stock,  was  lield  incor>i|)etent  to  disprove  his  hand-writing.  Hex  v.  Rhodes,  2  Stra, 
728.  Notr,  in  Rex  v.  Parr,  Leaches  Cro.  Car.  487,  it  is  said,  that  the  stockholder 
was  admitted  in  that  case  (which  wns  au  imliclment  for  personating  him  to  receive 
a  dividend)  to  prove  the  amount  of  the  stock  he  had  and  the  dividend  due  to  him. 
And  in  a  late  case  of  a  prosecution  for  the  forgery  of  a  promissory  note,  on  which 
there  was  an  endorsement,  in  the  prisoner's  hand  writing,  that  a  year's  interest  had 
been  paid,  the  person  whose  name  w;ts  forged  having  been  admitted  to  prove  that 
he  had  never  paid  the  money  mentioned  in  the  receipt,  and  a  case  beiflg  reserved 
on  this  point,  some  of  the  Judges  thought,  that  as  the  forgery  had  been  proved  before, 
the  witness  was  admissible  to  prove  this  fact,  but  the  majority  thought  otherwise, 
because  the  fact  was  not  perfectly  collaipral,  but  might  conduce  to  the  proof  of  the 
forgery.    Crocker's  Case,  2  Bos.  &  Pull.  JY.  R  87. 

4.  So  the  assij;nee  of  a  certificate  to  a  tiavy  bill,  whose  name  is  charged  to  have 
been  forged  to  a  receipt  for  the  money,  is  not  a  competent  witness.  Rex  v.  Thorn- 
ton, ibid.  723. 

5.  In  like  manner,  on  an  indictment  for  forging  a  seaman's  will,  an  executor, 
named  in  a  subsequent  will,  is  not  a  witness  to  prove  the  first  a  forgery.  Rex  v. 
Rhodes,  ibid.  29. 

6.  But  where  a  bank  note  was  forged  in  the  name  of  one  of  the  cashiers,  he,  not 
being  persimally  chargeable,  was  held  to  be  h  witness  to  prove  the  forgery,  though 
he  had  given  secuiity  for  the  faithful  discharge  of  his  duty.  Rex\.  JVewland, 
ibid.  350. 

7.  In  like  manner,  where  .4.  remitted  a  bill  to  R.  (which  was  made  papable  ta 
him)  for  the  pur(>ose  of  paying  the  debt  ot./i.  to  a  third  person,  and  not  on  his  owa 
account,  jB.  nevt-r  having  received  the  bill,  and  having  no  interest  in  it,  was  deemed 
a  competent  witness  to  prove  a  forgery  of  his  name  to  an  acquittance  on  the  back. 
Rex  v.  Sponsonhy ,  ibid.  374. 

8.  And  where  a  banker  had  paid  a  forged  draft,  and  being  afterwards  convinced 
of  the  forgery,  had  struck  the  money  out  of  his  account  with  ihe  person  whose  name 
was  forged,  the  supposed  drawer  was  also  admitted  to  be  a  witness.  Rex  v.  Usher, 
ibid.  ^7. 

9.  So  where  a  man  was  indicted  for  forging  a  receipt,  and  the  person  whose  name 
was  forged  had  recovered  the  mone)  from  ihi  prisoner,  he  was  admitted  a  witness 
perWi^-LKsC   J.    Wills's  Case,  Bui.  JV.  P  289. 

10.  Persons  interested  may  in  this,  as  in  other  cases,  be  made  witnesses  by  a  re- 
lease ;  as  the  su|iposed  obligor  in  a  bond,  may  be  a  witness  when  released  by  the 
obligee,  [Dr.  Dodd's  Case,  Leach's  Cro.  Cas.  184;  or  the  acceptor  of  a  bill,  when 
released  bv  the  holder  (Taylor's  Case,  ante,pla   2,)  and  the  like. 

11.  As  was  before  stated,  ih*-  case  of  an  indictment  for  forgery  is  considered  as 
an  anomalous  case  ;  it  has  therefore  been  held  ihat  the  rule  does  not  apply  to  ci»il 
actions,  but  that  in  such  cases  the  party  whose  nnme  has  been  foiged  may  be  called 
to  prove  the  forgery  without  any  release.  Hunter  r.  King,  4  Ram.  &  Aid.  299. 
—Vide  ante,  p.  818.— Am.  Ed. 


WITNESSES.  §45 


(E.)  Of  persons  who  may  be  ansiverahle  over,  or  have 
themselves  contracted. 

Whehe  a  person  has  entered  into  aconlract  with  another,  his  ability  to  fulfil  which 
is  afterwards  disputed  by  a  third  perscjti  in  a  Court  of  Justice,  and  the  consequence 
of  a  recovery  by  the  third  person,  would  be  an  immediate  right  in  the  person  with 
whom  the  contract  was  made  to  i-ecover  against  the  other  who  contracted  witli 
him,  it  follows  that  such  contractor  cannot  be  examined  us  a  witness  in  his  behalf, 
till  released  by  him  : — ^Therefore, 

1.  If  a  vendor  of  an  estate  covenant  for  the  title,  or  warrant  the  premises,  he  can- 
not be  a  witness  to  support  the  titlf  of  the  vendee  in  an  action  against  him  by  a  third 
person,  for  the  premises,  (2  RolPs  Abr.  685) ;  but  a  vendor  who  does  not  covenant 
for  the  title,  or  enter  into  any  warranty,  is  a  good  witness.  Busby  v.  Greenslate, 
\  Stra.  445.  \( ^.  sell  a  horse  to  B.  with  a  warranty  of  soumlness,  and  B.  after- 
wards sell  to  C.  with  a  like  warranty,  Jl.  is  a  witness  for  B.  in  an  action  by  C.  on 
the  warranty  :  for  the  horse  might  be  sound  when  sold  by  Ji.  though  unsound  when 
sold  by  B. ;  so  that  the  liability  of  ^.  is  not  a  necessary  consequence  of  the  recovery 
against  B.  Briggs  v.  Crick,  5  Esp.  Cas.  99. 

2.  In  a  covenant  for  rent  upon  a  Itase  by  .^.  to  B.  the  defendant  pleaded,  that  C. 
and  D.  being  seised  in  fee,  before  the  demise  in  the  indenture,  demised  to  E.  who 
entered  upon  defendant's  possession.  The  replication  admitted  the  seisin  of  C.  and 
D.  but  stated  that  they  demised  to  plaintiff  before  they  demised  to  £.,  and  C.  was 
held  a  competent  witness  to  prove  the  point  in  issue,  for  the  verdict  oould  not  be 
given  in  evidence  in  any  action  which  might  afterwards  be  brought  either  by  or 
against  him.  Belly.  Harinood,  3  T  Rep.  308.  But  if  two  persons  are  contending 
for  the  possession,  -who  are  to  pay  rent  in  different  rights,  there  the  landlord  could 
not  be  admitted  a  witness  to  prove  the  demise.     Per  Bulleh,  ibid. 

3.  If  ^.  agree  to  indemnify  B.  (a  candidate  at  an  election)  against  a  moiety  of  the 
expenses,  he  cannot  be  a  witness  for  C.  (an  agent  of  ^.)  in  an  action  against  him  for 
expenses  incurred  in  the  election,  for  he  is  liable  to  a  moiety  of  the  costs  under  his 
indemnity.  Trelaivney  v.  Thomas,  1  H.  Black.  303. 

Persons  who  are  jointly  liable  with  the  party  to  the  cause,  cannot  be  witnesses  to 
defeat  the  demand,  though  not  made  parties,  if  they  are  thereby  benefited  : 

4.  Thus  a  man,  who  was  proved  to  be  a  partner  with  the  defendant,  was  not  per- 
mitted to  be  examined  for  the  purpose  of  proving  that  he  was  solely  liable,  and  that 
the  defendant  was  his  servant,  because  by  that  evidence  he  discharged  himself  from 
the  costs  to  which  he  was  liable.  Goodacre  v.  Breame,  Peake's  Cas.  174.  But  if 
bis  supposed  partner  had  released  him  from  those  costs,  he  might  have  been  a  wit- 
ness; and  therefore  where  »^.  being  sued,  pleaded  that  the  contract  was  made  by 
him  jointly  with  B.  which  fact  was  traversed,  B.  on  being  released  by  A.  was  per- 
mitted to  prove  it.  Yoting  v.  Buirner,  1  Esp.  Cas.  103.  But  if  two  persons  jointly 
contract,  and  after  the  death  of  one  an  actif)n  is  brought  against  the  survivor,  ihe  next 
of  kin  of  the  deceased  contractor  may  be  call»"d  as-a  witness  for  tb  plaintiff,  to  prove 
the  joint  contract;  tor  the  same  evidence  which  fixes  the  ilebt  on  the  survivor,  cre- 
ates a  charge  against  himself  for  a  moiety.  Burton  v,  Burchall,  B.  R.  Hil.  43 
Qeo.  3.  Note.  In  this  case  there  was  no  other  witness.  If  lo  an  action  brought  by 
^.  alone,  it  be  objected  that  he  name  of  B.  is  used  as  a  partner  with  ^.  and  there- 
foie  that  the  action  in  the  name  of  Jl.  alone  cannot  be  supported,  B.  mav  b-  called 
as  a  witness  to  prove  that  in  fact  he  has  no  interest.  Parsons  v.  Crosby,  5  £./». 
Cas.  199. 

5.  Where  several  partners  of  a  ship  by  deed  appointe<l  a  ship's  husbHml.  and  he 
laid  out  a  sum  of  money  in  insuring  the  whole  ship,  and  brought  several  actions 


Ch.  m  s.  3. 
Persons  an- 
swerable 
over. 


OVtT. 


;y4,6  WITNESSES. 

Ch.  in.  s.  3.  '•g'^inst  each  for  the  whole  money,  the  di-fendant  in  one  action  was  held  to   be  in- 

Persons  an-    eonipt  ti-ni  to  prove,  on  the  trial  of  (he  other,  that  the  nnoiiey  was  laid    out  against 

swi-iable      the  cimsent  of  the  owners.  French  v.  jBacfr/wuie.    Same  v.  Fulslon,  6  Burr  272'. 

6.  Ill  an  action  agaitist  an  administrator,  a  co-obligor  in  a  bond  lo  the  ordiii;«ry  un- 
der tl)'-  Statute  of  Distribution,  whs  held  to  be  conipetent  to  prove  a  tender  of  the 
di  ht,  for  he  was  not  intrrcsted  in  that  cause,  and  the  bare  possibiUty  ui'  his  t.-ing 
liable  to  an  action  in  a  certain  event,  was  no  objection  to  bis  testimony.  Carter  v. 
Pearce,  1  T.  Rep.  163. 

7.  No  person  who  has  made  himself  linble  in  a  secondary  degree,  as  bail,  the 
guardian  of  an  \nist.n\.onv^cf)vA[Chitterbuckv.Lord  Huntingtoiver,  \  Stra.SOC),)  the 
prochein  amy,  or  in  short  any  person  who  has  undertaken  to  pay  the  costs,  {^Hopkins 
V.  JVeale,  2  Stra.  1026,  Cas.  Temp.  Hard.  202,)  can  be  examined  as  a  witness  for 
the  person  on  whose  behalf  he  has  made  himself  liable  ;  but  in  these  cases  the  Court 
will,  on  motion,  permit  another  person  to  be  substituted  for  him,  in  order  that  he 
may  be  a  witness. 

8.  In  an  action  by  the  obligee  of  a  joint  and  several  bond  against  one  of  the  obli- 
gors, who  was  surety  for  another  who  had  become  bankrupt,  anH  against  whose 
estate  the  plaintiff  had  proved  his  debt,  and  thereby  relinquished  his  action  against 
him  ;  by  sect.  14  of  Stat.  49  Geo-  3,  c.  121,  the  bankrupt,  not  baring  obtained  his 
certificate,  and  therefore  being  liable  lo  be  sued  by  his  surety  in  case  of  a  verdict  by 
the  plaintiff  against  hira,  is  not  a  competent  witness  to  prove  payment.  Toionend 
V.  Doweling,  14  East,  565, 


(FO  Of  persons  themselves  liable  charging  others,  vide  ante  (B.) ; 
or  coming  to  claim  property  in  themselves. 

1.  Pehsonss  who  are  primarily  liable,  are  never  permitted  to  charge  others  by 
their  evidence  until  released,  unless  in  cases  where  they  stand  indifferent ;  and 
therefore  where  a  workman  has  been  employed  to  do  work  about  the  house  of  ^. 
and  he  afterwards  brings  an  action  against  another  workman,  who  contracted  to  do 
the  whole  for  a  certain  sum,  ^.  cannot  prove  this  case  till  released  by  the  person 
so  bringing  the  action.  J\i"ew  v.  Chidgy,  Peahens  Cas.  98. 

2.  But  a  person  who  gives  a  bribe  to  another,  at  an  election  of  members  of  Par- 
liament, is  a  competent  witness  to  prove  the  fact  in  an  action  on  the  Statute,  though 
he  thereby  discharges  himself  from  the  penalty  ;  for  by  this  provision  the  Legislature 
intended  he  should  be  a  witness.  Mead  v.  Robinson,  fViUes,i'22.  So  the  person 
bribed  is,  in  like  manner,  a  witness.  Bush  v.  Rawlins,  before  FosTEn  J.  at  Abing- 
ton  Sura.  Assizes,  cited  Coivp.  199,  and  reported  by  the  name  of  Bushy.  Railing, 
Sc'y,'i&9.  This  doctrine  was  afterwards  doubted,  (vide  Edwards  v.  Evans,  3  East, 
451,)  but  in  a  subsequent  case  the  Court  confirmed  it;  and  held,  that  even  though 
the  witness  intended  to  use  the  verdict  for  his  own  indemnity,  yet  that  he  was  a  wit- 
ness of  necessity.  Howard  v.  Shipley,  4  East,  180. 

3.  A  man  who  has  been  arrested,  and  suffered  by  the  Sheriff  to  escape,  is  a  com- 
petent witness  to  prove  the  escape,  for  he  is  not  discharged  by  a  recovery  against 
the  Sheriff.  Cass  v.  Cameron,  Peake^s  Cas.  124.  Rex  v.  fVarden  of  the  Fleet, 
Bui.  J^T.  P  67.  So  a  person  rescued  is  a  witness  for  the  defendant  in  an  action 
against  him  for  the  rescue.  Wilson  v.  Gary,  6  Mod.  211.  But  where  .^.  brought 
trespass  against  the  Sheriff,  for  Inking  his  goods  under  an  execution  against  B.  the 
Court  held  that  B.  was  not  a  witness  to  disprove  an  assignment  of  them  from  him- 
self to  ^.  under  which  assignment  ,d.  claimed.  Bland  v.  Ansley,  2  Bos.  &  Pvl. 
A".  R.  331, 


&c 


WITNESSES.  2^ 

4.  In  an  action  against  the  acceptor  of  a  bill  of  exchange,  brought  by  the  eiulorsee,  qj^    yj  ^  g 
the  defendant  offVred  to  call  the  endorser  to  prove  lliat  lie  endorsed  the  bill  to  the  Persons  theiri- 
plaintiff'to  receive  as  agent  for  him,  arid  that  he  was  still  beneficially  entitled  to  it,  selves  liable, 
but  the  Court  held  him  an  incompetent  vviiiiess,  as  coming  to  prove  a  right  in  him- 
self, which  would  be  benefited  by  defeating  the  plaintiff's  action.  Bucklaiid  v.  Tan- 
kard, 5  T.  Ref).  5-8.  4| 

.').  In  an  action  of  trover  for  a  horse,  a  witness  may  be  called  to  prove  that  the 
plaintiff  agreed  to  his  taking  the  horse  as  a  security  for  money  due  to  him  from  the 
plaintiff",  and  selling  it  if  the  money  was  not  paid  on  a  day  certain,  and  that  the  mOney 
not  being  paid  the  witness  accordingly  sold  the  horse  to  the  defendant;  for  the  ver- 
dict to  be  obtained  on  his  evidence  will  not  avail  him  in  an  action  to  be  brought 
against  him  by  the  plaintiff".  J^fix  v.  Cutting,  i  Taunt.  18. 

6.  Where  two  persons  have  joined  in  a  promissory  note,  and  the  payee  brings  an 
action  against  one  only,  he  may  call  the  other  to  prove  the  signature  of  the  defend- 
ant. York  V.  Blott,  5  M.  &  S.71. 


SECTION  IV. 

Of  persons  incompetent  by  reason  of  their  relation  to  the  parties. 

In  the  preceding  sections,  our  attention  was  confined  to  per-  S**A'"^'/''^J 
sons  whose  evidence  is  excluded  on  account  of  imbecility,  crime,      wife, 
or  interest.     We  are  now  to  consider  those  who  stand  in  a  dif-  i 
ferent  situation,  and  are  excluded  nBt  by  reason  of  any  disability, 
but  on  account  of  higher  duties,  either  domestic  or  public,  bind- 
ing them  to  silence. 

It  has  been  before  mentioned,  that  no  one  can  be  a  witness 
for  himself;  and  it  follows  of  course,  that  husband  and  wife, 
whose  interests  the  law  has  united,  are  incompetent  to  give  evi- 
dence on  behalf  of  each  other ;  or  any  other  person  whose  in- 
terests are  the  same  :*  and  the  law,  considering  the  policy  of  BuI.  N.  P. 
marriage,  also  prevents  them  from  giving  evidence  against  each^^^' 
other;  for  it  would  be  hard  that  the  wife,  who  could  not  be  a 
witness  for  her  husband,  should  be  a  witness  against  him  :  such 
a  rule  Would  occasion  implacable  divisions  and  quarrels  between 
them.(«) 

•  Therefore,  if  two  persons  are  jointly  indicted  for  an  assault,  the  wife  of  one 
';<nnotbe  admitted  as  a  witness  for  the  other.  Jtexv.  Frederick  andTiacy,^ 
Stra.  1095. 

(a)  M'JVally,  in  his  Rides  of  Evidence,  p.  181,  says,  that  he  has  not  discovered 
any  case  oi'  Itigli  treaso>i  where  the  wife  was  examined  as  a  witness  against  her  hus- 
band. 

If  a  /ws6a7tfJ  be  indicted,  and  on  his  trial  jointly  with  others,  the  wife  is  not  a 


;348 


WITNESSES. 


Ch.  III.  s.  3. 

Husband  and 

Wife.       ' 


Vide  1 
Brownl.  47; 
2  Keb.  403. 
1  Hal.  P.  C. 
301. 

Hawk.  P.  C. 
lib.  2,  c.  4G, 
s.  16. 

1  State  Tr. 
265.  269. 
Hution,  115. 
Vide  Sir  T, 
Raym.  1. 
Res  V.  Azire, 
1  Stra.  633. 


Bill.  N. 
287. 


Hawk.  lib.  2. 
c.  46j  s.  16. 


1  Hal.  P. 

693. 


Monroe  v. 
Twisleton, 
Append. 


The  rule  extends  even  to  criminal  prosecutions,  except  the 
case  of  high  treason,  where  it  has  been  said,  the  law  deems  the 
allegiance  due  to  the  Crown  paramount  to  every  private  obliga- 
tion :  (though  even  this  has  been  doubted)  and  as  we  have  before 
seen,  that  witnesses  in  some  degree  intffested  may  be  admitted 
where  absolute  necessity  requires  it,  so  where  the  husband  has 
committed  personal  violence  on  the  wife,  she  may,  from  the  ne- 
cessity of  the  case,  be  examined  as  a  witness  against  him ;  as 
in  the  case  of  Lord  Dudley,  who  was  indicted  for  assisting  in 
the  rape  of  his  wife  ;  and  though  the  propriety  of  thi<*  decision 
was  at  one  time  doubted,  yet  reason  seems  strongly  to  support 
it ;  and  more  modern  cases  have  adopted  the  practice,  and  ad- 
mitted her  evidence  against  her  husband  of  personal  violence,  or 
ill-treatment  of  herself.(6) 

It  is  clearly  settled,  that  a  woman  who  never  was  legally  the 
wife  of  a  man,  though  she  has  been  in  fact  married  to  him,  may 
be  a  witness  against  him;  as  in  an  indictment  for  bigamy,  the 
first  marriage  being  proved  by  other  witnesses,  the  second  wife 
may  be  examined  to  prove  the  marriage  with  her,  for  she  is  not 
de  jure  his  wife  :  so  if  a  woman  be  taken  away  by  force  and 
married  ;  on  an  indictment  against  the  husband  de  facto,  founded 
on  the  Statute  3  Hen.  7,  she  is  a  witness  to  prove  the  fact,  be- 
cause the  contract  of  marriage  being  obtained  in  express  viola- 
tion of  that  law,  has  no  binding  operation.  But  on  an  indict- 
ment for  bigamy,  the  first  wife  is  no  witness  to  prove  her  mar- 
riage, because  she  is  legally  his  wife,  and  therefore  incompetent 
to  give  evidence  against  him.  And  if  a  woman  who  was  once 
legally  the  wife  of  a  man,  be  divorced  a  vinculo  matrimonii  by 
Act  of  Parliament,  she  cannot  afterwards  be  called  as  a  witness 


competent  witness  for  any  of  the  defendaats.  Common-wealth  v.  Easland  et  al. 
1  Mass.  Rep.  15. 

Qiiere,  Can  a  husband  be  admitted  to  prove  a  fact  which  amounts  to  adultery  in 
the  wife,  as  it  is  against  good  manners  and  common  decency  that  such  evidence 
should  be  received.  TTie  Inhabitants  of  Canton  v.  Bentley,  1 1  JUass.  Rep.  441. 

If  the  wife  of  the  obligor  alti'st  the  bond,  she  is  no  witness,  and  proof  of  her  hand 
writing  will  not  be  received.  J^'elhis  v.  Brickell,  1  Huy\u.  Rep.  19. 

In  suits  in  which  the  husband  is  not  immediately  and  certainly  interested,  but 
may  be  so  eventually,  the  wife  is  a  competent  witness,  and  the  jury  are  to  judg-.-  of 
her  credibility.  Baling  v.  Reeder,  1  Hen.  &  Munf.  Rep.  154. 

The  declarations  of  the  w//J?,  will  not  be  received  for  or  against  her  htisband.  Les, 
of  Watson  v.  Bailey,  1  Binn.  Rep.  470.— Am.  Ed. 

(i)  The  deposition  of  a  wife  on  her  death  bed,  charging  her  husband  with  mur- 
dering her,  was  admitted  as  evidence  against  her  husband,  on  his  trial  for  the  mur- 
der. Pennsylvania  v.  Stoops,  Addis.  Rep.  332. — Am,  Ed. 


WITNESSES.  ^^g 

against  him  to  prove  any  fact  which  happened  during  the  cover-  ch.  iii.  s.  4. 
ture;  but  she  is  competent  to  give  evidence  of  transactions  Husi)v.mi  and 
which  took  place  subsequent  to  the  divorce.(c)  ^ 

The  rule  of  law  does  not  merely  prevent  a  husband  or  wife 
from  giving  evidence  for  the  purpose  of  criminating  each  other, 
it  goes  much  further,  and  precludes  any  evidence  which  has  the 
least  tendency  to  it,  or  which  directly  prejudices  the  civil  rights 
of  either.  Neither  in  a  civil  action,  nor  a  criminal  prosecution, 
are  they  permitted  to  give  any  evidence  which,  in  its  future 
effects,  may  criminate  each  other ;  and  this  rule  is  so  inviolable, 
that  no  consent  of  the  other  party  will  authorise  the  breach  of 
it.(rf)  But  in  civil  actions,  where  neither  is  a  party,  the  wife 
may  be  called  as  a  witness  to  prove  facts  which  may  eventually 
charge  the  husband  with  a  debt.* 

(c)  State  V.  Phelps,  2  Tyl.  Rep.  374.— Am.  Ed. 

((/)  Where  the  wife  acts  as  the  assent  ot  the  husband  in  the  management  of  a 
tavein,  he  being  insane,  her  declarations  shall  be  received  as  evidence  against  the 
husband.  Htighes's  adms.  v.  Stohes's  adms.  1  Hayw.  Rtp.  322. 

In  an  information  agninst  th^  -wife,  for  adultery,  the  husband  cannot  be  a  witness. 
State  V.  Gardner,  1  Root's  Rep.  485.— Am.  Ed. 

•  In  an  action  for  a  malicious  prosecution,  the  defendant  was  willing  that  the  plain- 
tiff's wife  should  be  examim  d.  Lord  HaHdwuke,  "  The  reason  why  the  law  will 
not  suffer  the  wife  to  be  a  witness  for  or  against  her  husband,  is  to  preserve  the  peace 
of  families,  and  therefore  I  shall  never  encourage  such  consent;"  and  she  was  not 
examined.  Barker  v.  Sir  Woolston  Dixie,  bart.  Cases  Temp.  Hard  264. 

In  ejectment  the  plaintiff  made  title  to  his  lessor  to  the  lands  in  question,  as  son 
and  heir  to  Jerome  Jaques,  and  Hannah  his  wife,  in  right  of  Hannah.  The  de- 
fendant gave  in  evidence  that  Jernme  Jaques  was  married  betoi  e  he  was  married  to 
Hannah;  and  the  woman  to  whom  it  was  supposed  he  was  married  before,  was 
produced  at  the  trial,  (Sun..  Assiz.  13  W.  3,  ai  Jilaidstone,)  to  prove  this  marriage. 
The  council  for  the  plaintiff  oppose  1  her  testimony,  because  she  swore  tor  her  ad- 
vantage ;  viz.  to  have  a  tmsband,  the  husband  being  then  living.  But  nevertheless 
GoDLD  J.  of  the  King's  Bench,  then  Judge  of  assize,  admitted  her  testimony.  But 
afterwards  the  same  title,  between  the  same  parties,  was  tiled  before  Holt  C.  J. 
at  the  assizes  in  March,  at  JVraidstone,  1  JInne,  Reg.  and  he  refused,  after  debate, 
to  admit  the  former  wife  to  be  a  witness  for  iliis  purpose  :  but  upon  other  evidence, 
the  former  marriage  was  proved  to  the  satisfaction  of  the  jury,  being  gentlemen, 
whereupon  they  found  a  verdict  for  the  defendant.  But  in  the  same  trial  before 
GocLD  J.  the  jury  found  a  verdict  for  the  plaintiff.  Broughton  v.  Harper,  2  Lord 
Raym.  752. 

In  an  action  by  a  plaintiff,  as  a  feme  sole,  for  goods  sold,  &c.  the  defendant  called 
the  husband  as  a  witness,  to  prove  that  she  was  a  married  woman;  and  he  was  ad- 
mitted, and  the  plaintiff  was  nonsuited.  On  a  motion  to  set  it  aside,  the  majority  of 
the  Court  thought  he  was  not  admissible  on  the  grpund  of  policy  ;  Bcller  J.  doubted 
at  first,  upon  the  ground  that  the  husband  was  not  interested  in  that  case,  but  he  af- 
terwards acceded  to  the  opinien  of  the  Court,  upon  the  broad  ground  adopted  by 
them,  of  the  impolicy  of  permitting  liasbHod  and  wife  to  give  eridence  for  or  agaiast 
each  other.  Bentley  \.  Cook,  cited  2  T.  Rep.  265. 

K  k 


250 

Ch.  111.  s.  4. 
Pi-ofessional 
confidence. 


Wilson  V. 
Kastal,  4T 
Kep.  753. 


WITNESSES. 

In  like  manner,  as  the  law  respects  the  private  peace  of  men 
it  considers  the  confidential  communications  made  for  the  pur- 
pose of  defence  in  a  Court  of  Justice.  By  permitting  a  man  to 
intrust  his  cause  in  the  hands  of  a  third  person,  it  establishes  a 
confidence  and  trust  between  the  client  and  the  person  so  em- 
ployed. A  counsel,  solicitor  or  attorney,  cannot  conduct  the 
cause  of  his  client  if  he  is  not  fully  instructed  in  the  circum- 
stances attending  it :  but  the  client  could  not  give  the  instruc- 


In  the  case  of  the  JK'inff  v.  The  Inhabitants  of  Cliveger,  2  T.  Rep.  263 :  On  aa 
appeal  against  an  order  of  removal,  the  responfleiits  proved  a  marriage  in  fact  be- 
tween the  paupers  ;  and  the  appellants  conteniling  that  the  husband  had  a  former 
V  ife  living,  called  him,  but  he  denying  the  fact,  they  offered  to  call  her  for  the  pur- 
pose  of  proving  it.  The  sessions  rejected  her  evidence,  and  the  question  coming  on 
before  the  Court  of  King's  Bench,  the  Judges  of  that  Court  were  also  of  opinion 
that  she  was  an  incompetent  witness.  Ashhthst  J.  said,  "The  ground  of  her  in- 
competency arises  from  a  principle  of  public  policy,  which  does  not  permit  husband 
and  wife  to  give  evidence  that  may  even  teiid  to  crimuiate  each  other.  The  objec- 
tion is  not  confined  merely  to  cases  where  the  husband  or  the  wife  are  directly  ac- 
cused of  any  crime,  but  even  in  collateral  cases,  if  their  evidence  tends  that  way,  it 
shall  not  be  admitted.  Now  here  the  wife  was  called  to  contradict  what  her  hus- 
band had  before  sworn,  and  to  prove  him  guilty  of  perjury,  as  well  as  bigamy  ;  so 
that  the  tendency  of  her  evidence  was  to  charge  him  with  two  crimes.  However, 
though  what  she  might  then  sv^ear  could  not  be  given  in  evidence  on  a  subsequent 
trial  for  bigamy,  yet  her  evidence  might  lead  to  a  charge  for  that  crime,  and  cause 
the  husband  to  be  apprehended.  In  that  point  of  view,  therefore,  I  am  of  opinion, 
that  her  testimony  ought  not  to  have  been  received,  because  it  is  an  established 
maxim,  that  husband  and  wife  shall  not  give  evidence  to  criminate  each  other.' 
GkoskJ.  said,  "The  general  rule,  as  to  husband  and  wife  being  witnesses,  was 
founded  not  on  interest,  but  on  policy  ;  by  which  ii  was  established,  that  a  wife 
shoiilil  not  be  called  to  give  testimony  ina/iy  degree  to  criminate  her  husband;"  and 
Lord  Hale  says,  that  she  shall  not  be  called  even  indirectly  to  criminate  him  ;  and 
that  rule  seems  to  have  governed  all  the  decisions  from  that  time  to  the  present. 
The  true  and  just  ground  of  objection  is  not  that  of  interest,  but  is  founded  on  the 
political  inconvenience  of  causing  dissentions  in  families,  between  husband  and  wife, 
and  so  it  is  put  by  Lord  Hale. 

In  Uavies  v.  Dinwoody,  4  T.  Rep.  678,  which  was  an  action  brought  by  the 
trustees,  under  a  marriage  settlement,  whereby  goods  were  secured  to  the  wife, 
against  the  Sheriff  for  taking  them  under  an  execution  against  the  husband  ;  he  was 
called  to  prove  the  identity  of  them  :  an  objection  was  made  to  him  on  account  of 
interest ;  and  on  the  case  coming  before  the  Court,  the  plaintiff's  counsel  argued 
that  she  vvas  not  interested  ;  but  it  was  answered  per  Lord  Kenton  C.  .J.  that  inde- 
pendently  of  the  question  ol  interest,  husbands  and  wives  are  not  admitted  as  wit- 
nesses, either  for  or  against  each  other  :  from  their  being  so  nearly  connected,  they 
are  supposed  to  have  such  a  bias  upon  their  minds,  that  they  are  not  to  be  permitted 
to  give  evidence  for  or  against  each  other. 

It  is  observed  in  the  text,  that  between  third  persons,  a  wife  may  be  admitted  to 
give  evidence,  which  throws  the  demand  upon  her  husband.  Thus  in  an  action 
against  the  daughter's  husband  for  her  wedding  clothes,  her  mother  was  admitted 
to  give  evidence,  which  shewed  that  they  were  delivered  on  the  credit  of  the  mo- 
ther's husband.  [Viltiiims  V .  Jolmson,  1  Stra.  5Qi, 


WITNESSES.  2Qi 

tions  with  safety,  if  the  facts  confided   to  his  advocate  were  to  Ch.  iii.  s.  4. 
be  disclosed.     Barristers  and  attorneys,  therefore,  to  whom  facts  f^*' o'''ssionai 

,  ^       .         ,,         ,      .  "^  .  ,      .  confidence. 

are  related  protessionally,  during  a  cause,  or  m   contemplation 

of  it,  are  neither  obliged  nor  permitted,  thougli  they  should  so/nDugap^g 
far  forget  their  duty  as  to  be  willing  to  do  so,  to  disclose  the^-  Liveue, 
facts  so  divulged,  during  the  pendency  of  that  cause,  or  at  any  rr. 
future  time  ;(e)  and  if  a  foreigner,  in  communicating  with  his ,  >  ^.  „ 

,,  ,  ,  .  ,       .  ,,  ,        (2)I)iifnn  T'. 

attorney,  has  recourse  to  an  interpreter,  he  is  equally  bound  tosmitii,  Peak, 
secrecy .(1)     But  where  the  attorney  himself  is,  as  it  were,  a^'*'**^'*- 
party  to  the  original  transaction,  as  if  he  attest  the  execution  of(3)  Vide  Doe 
a  fraudulent  deed,*( 2)  was   present  when  his  client  was  sworn 'ii^'^'^ij.f^s^^'' 
to  answer  in  Chancery,C3)  or  employed  as  the  steward  or  affcnt.t'-^'i^^P  846. 

*  Bui.  N.  p. 

.  ^____ -l.^'^.  2  Slra. 

~    ~  ir22,  conlra, 

(e)  An  agent  is  bound  to  give  in  evidence,  confidential  coramunications  made  to  liira 
as  such.  Holmes  v.  Come^ys,  I  Dull.  Rep.  439.  Vide  Morris's  les.  v.  Vanderen 
ibid.  64. — Am.  Ed. 

•  On  this  principle  Abbott  C.  J.  held  that  on  a  question  whetiicr  the  defendants 
■were  partners  or  not,  an  attorney  who  had  been  consulted  by  them  professionally 
as  to  the  dissolution  of  their  parlnersliip,  might  be  called  to  prove  that  tact,  and 
stated  the  rule  to  be,  that  the  protection  was  only  extended  to  those  communications 
which  related  to  a  cause  existitig  at  the  time  of  the  commuuicatinn,  or  then  about  to 
be  commenced.  Wadsworth  v.  Hamshaiv,  cited  2  Brod.  &  Bing.  5.  But  in  the 
case  of  Cromach  v.  Heatchcote,  ibid,  the  Court  ot  Common  Pleas  ruled,  that  an  at- 
torney who  had  been  applied  to  draw  a  bill  of  sale  of  goods,  which  he  refused,  con- 
sidering it  as  fraudulent,  could  not  afterwards  disclose  the  communication  then  ma<Ie 
considering  it  as  a  confidence  which  ought  not  to  be  broken.  Richaudsojt  J.  said, 
"  Suppose  the  case  of  an  attorney,  consulted  on  the  title  to  an  estate,  where  there 
was  a  defect  in  the  title,  can  it  be  contended  that  he  would  ever  be  at  liberty  to  di- 
vulge the  flaw."  Qiiere,  Is  not  the  one  case,  that  of  a  confidential  communication 
of  a  pre-existing  fact,  and  the  other,  the  doing  of  an  act  in  which  the  attorney  either 
does  become,  or  is  invited  by  the  party  to  become  a  participator  i" 

\-j-  Wilson  V.  Rastal,  4  T.  Rep.  753.  In  an  action  on  the  Bribery  Act,  W-  liand- 
/^  was  called,  who  deposed,  that  previous  to  the  dissolution  of  Parliament,  ii.  the 
spring  of  1790,  he  had  received  letters  from  the  defendant,  which  he  had  given  to 
Mrs.  Handley,  with  directions  to  destroy  them  ;  but  did  not  know  whether  she  had 
done  so  or  not.  B-  Handley  was  then  called,  who  said  he  had  the  !•  tiers  in  ques- 
tion, which  hf  received  from  Mrs.  H-  and  tliat  IV.  H  was  at  that  time  under  prose- 
cution for  bribery,  and  he  wished  to  render  him  what  assistance  he  could.  That 
Mrs.  //.  had  desired  hiro  to  destroy  the  letters,  but  that  he  had  kept  them.  That 
there  was  no  action  tiow  pending:  against  W.  H.  but  the  two  years  were  not  expired. 
The  letters  were  not,  as  he  knew  of,  put  into  his  tiands  with  fV.  H's  privity,  but  he 
had  kepi  them  with  h.s  privity  or  consent.  W.  H  had  indeed  desired  him  to  de- 
stripy  them,  but  he  had  not  done  so,  for  the  same  reason  as  he  had  not  complied 
with  the  like  request  from  Mis.  H  namely,  that  he  had  soon  after  the  election 
slated,  that  IV.  H.  acted  only  under  the  direction  of  the  defendant  in  the  elei-tion 
business.  He  fuiiher  stated,  that  he  was  not  tl^en  coacernt  d  in  carrying  on  any 
Buit  for  W.  H-  ;  ih-.(t  he  never  was  attorney  in  any  at-tion  of  indemmi  y  ;  ihat  he  had 
been  applied  to  by  W.  H.  to  be  coticeraed,  but  had  declined  it ;  giving  as  a  reason, 


<35S  AVITNESSES. 

Cli.  in.  s.  4.  and  does  not  gain  his  knowledge  of  it  merely  by  the  relation  of 
coiifiOe'"w '  ^^^  client,  the  rule  does  not  apply,  for  in  these  cases,  there  was 
no  professional  confidence,  and  he  stands  in  the  same  situation 


Cnb.1.  n  V.  as  every  other  person.(/)  In  like  manner,  where  after  the  com- 
K(iiiick,4T.  ppQp^igg^  though  before  the  final  conclusion  of  a  cause,  a  party 
told  his  attorney,  by  way  of  exultation,  that  he  had  succeeded 
in  recovering  a  sum  of  money  to  which  he  was  not  entitled  ;  it 
was  held  that  the  attorney  might  prove  this  fact ;  because  it  was 
not  a  confidential  communication  for  the  purpose  of  enabling 
him  to  conduct  the  cause ;  and  for  the  same  reason,  if  an  attor- 
ney in  the  course  of  a  cause  interrogate  a  witness,  as  to  his  know- 
ledge of  certain  facts,  and  such  witness,  on  being  called  in  ano- 


that  he  was  under  Sheriff,  and  a  material  witness  in  the  cause.  That  he  had  not 
employed  IF.  /T's  altorne)'  for  liim,  but  that  W.  H.  had constilted  him  in  his  profes- 
sion as  a  confidential  pi'rson,  and  had  apfilied  to  him  both  before  and  after  he  had 
received  the  letters.  He  had  de4red  the  witne.is  to  considt  with  Ms  attorney,  which 
he  had  done,  as  -well  as  xvith  IV.  H  himself  The  letters  were  communicated  to  him 
in  consequc7ice  of  JV.  H.  applying  to  him  professio.ially.  On  this  case  Mr.  B  Thomp- 
son, who  tried  the  cause,  thought  that  £.  H.  was  confidentially  employed  by  W.  H. 
and  tliat  therefore  he  could  not  be  examined  ;  but  the  Court  afterwards,  being  of  a 
contrary  opinion,  granti  d  a  new  trial. 

(_/")  A  professional  man,  not  employed  by  a  party,  is  a  good  witness  against  him, 
though  his  knowledge  be  derived  in  the  course  of  business.  Hoffmanet  al.  v.  Smith, 
I  C(ii7ies'  liep.  157 .  Et  Vide  Heistery.  Davis,  3  Feates' Hep.  i  Jlillsv.  Griswold,! 
RooVs  Rep.  383.  Sherman  v.  Sherman,  ibid  486.  Calkinsv.  Lee,  2  Root's  Rep.  363. 

But  terms  of  coiuprc^mise,  offered  by  an  attorneyto  his  client's  creditors,  are  not 
confidential,  and  must  be  disclosed.  JH'Tuvish  v.  Dunning,  Anth.  JsT.  P.  Cns.  82. 

It  doi  s  not  apjily  to  a  student  in  the  office  of  an  attorney.  Andrews  et  al.  v.  Solo- 
mons et  al.  1  Peters'  Rep.  356. 

An  attorney  or  counsel  cannot  testify  as  to  communications  made  by  a  client, 
■whdst  the  relation  "f  attorney  or  counsel  and  client  subsists.  Tordan  v.  Hess,  13 
Johns.  Rep.  49'2.  MTuvish  et  al.  v.  Dunning,  Anth.  JV.  P.  Cos.  113. 

But  though  he  Ciinnot  be  compelled  to  produce  a  deed  or  other  instrument  en- 
trusted to  him  by  his  client,  nor  to  disclose  its  date  or  contents,  yet  he  may  be  called 
as  a  witness  lo  prove  its  i  xistence,  and  that  it  is  in  his  possession,  so  as  to  entitle  the 
opposite  party,  on  his  refusing  to  produce  it  on  the  trial,  after  notice  for  that  pur- 
pose, to  give  parol  evidence  of  its  contents.  Brandt  ex.  d.  Van  Cortland  et  al.  v. 
Klein,  17  Jhi.s.  Rep.  335. 

An  -ittorney  or  counsel  of  the  plaintiff  or  defendant,  may  be  compelled  to  testify 
•whether  a  (ked  described  by  the  adverse  party  is  in  his  possession  or  not,  so  as  to 
authorise  the  other  party,  on  his  refusing  to  produce  it,  after  notice  for  that  purpose, 
to  give  parol  evidence  of  its  contents.  Jackson  ex.  d.  JVeilson  etux.y.  JU'Vey 
et  al.  18  Johns.  Rep  330. 

An  nitorney  or  counsel  of  one  of  the  parties,  may  be  called  to  testify  to  a  collateral 
fact  within  his  knowledge,  ar  to  a  fart  which  he  might  know,  without  its  being  en- 
trusted by  his  client.  Johnson  v.  Daverne  et  al.  19  Johns.  Sep.  134.  Heistery. 
Davis,  3  Yeates'  Rep.  4.— Am.  Ed. 


WITNESSES.  25S 

ther  cause,  give  a  different  account  from   that  formerly  related  Ch.  in.  s.  4. 
bv  him  to  the  attorney,  the  adverse  party  may  call  the  attorney  l'»"'«ssioiiHl 

..  .-1  -.1.  •         xi  1    X-  1.1-  confidence. 

to  discredit  the  witness  by  proving  the  relation  made  to  mm  on _^ 

such  examination:  so  where   a  notice  to  produce  ])apers  liad  ,vi,.Beikiev's 
been  delivered  to  an  attorney  in  the  course  of  a  cause, (1)  it  wasK^v'!''^"''"^^^ 
held  that  the  party  giving  sucli  notice  might  call  the  attorney  tocasc  ii  St.* 
vi'hom  it  was  delivered  to  prove  the  contents  of  it.  '''''•  ^53. 

This  rule  of  professional  secrecy  extends  only  to  the  case  of(i)  Spenceiv 
facts  stated  to  a  legal  practitioner  for  the  purpose  of  enabling?^-  '^'=*'"lf"" 
him  to  conduct  a  cause  ;  and  therefore  a  confession  to  a  clergy- 357.' 
man  or  priest,  for  the  purpose  of  easing  the  culprit's  conscience^Spaike's 
the  statement  of  a  man  to  his  private  friend,  or  of  a  patient  topJ^jj^l|, 
his   physician,  are  not  within   the  protection  of  the  law.     We  Cases,  77. 
should  certainly  think  that  the   friend,  or  the  physician,  who Kingsion's 
iJo/Mn/an7v  violated  the  confidence  reposed  in   him,  acted   dis- Case,  u  St. 

Tr  243  &c 

honourably;  but  he  cannot  withhold  the  fact,  if  called  upon   in     '      ' 
a  Court  of  Justice.(^) 

Where  a  man  has,  by  putting  his  name  to  an  instrument,  given 
a  sanction  to  it,  he  has  been  held  by  some  Judges  to  be  precluded 
or  estopped  from  giving  any  evidence   in  a  Court  of  Justice 
which  may  invalidate  it ;  as  in  the  case  of  a  party  to  a  bill  of  Vide  Walton 
exchange  or  promissory  note,  who  has  been  said  not  to  be  an ^  n^p^^^ 
admissible  witness  to  destroy  it,  on  the  ground  that  it  would  be 
enabling  two  persons  to  combine  together,  and  by  holding  out  a 
false   credit  to  the  world,  to  deceive  and  impose  on  mankind. 
On  this  principle  it  was  held,  that  an  endorser  could  not  be  a 
witness  to  prove  notes  usurious  in  an  action  on  a  bond  founded  ibid, 
on  such  notes,  though  the  notes  themselves  had  been  delivered 
up  on  the  execution  of  the  bond.     At  one  time  this  seems  to 
have  been  understood  as  a  general  principle,  applying  to  every  gg^f^  Ba- 
ker, Append 

(j')  A  confidential  commercial  agent  or  factor,  may  be  compflled  to  give  evi- 
dence, even  of  matters  confidential  I)'  communicated  to  him.  Holmes  v.  Coinegys, 
1  Dall.  Rep.i39. 

Sed  dubitatur,  in  JMorris^s  les.  v.  Vanderen,  1  Do.  CG. 

A  confidential  clerk,  is  not  privileged  from  giving  eviilence  of  facts,  which  his  situ- 
ation as  clerk  enabled  him  to  know.  Corp  v.  Robmson,  C.  C.  Oct.  180'J,  Jil.  S. 
Rep. 

Confessions  made  to  a  Roman  Catholic  clergyman  in  confidence,  and  whose 
duty  it  is  to  receive  auricular  confessions  according  to  the  canons  of  that  church, 
will  not  be  received  in  evid<nce.  Smitk-s  Case,  '2  JV.  York  City  Hall  Recorder,  77. 
Et  >ide  note,  ibid  p.  80.  Et  vide  P/dlips's  Case  reportt^d  by  TV.  Sampson,  esq. 

Yet  admissions  made  by  a  prisoner  to  a  divine  of  die  Protestant  churches,  will  be 
received,  ibid.  77. — Am.  Ed. 


25^  WITNESSES. 

cii.  III.  s.  4.  species  of  written  instrument  ;(/*)  but  in  a  case  wliere  an  under- 
haveTis.red'  '^^'•'ter  of  a  policy  of  insurance  was  called  to  prove  the  instru- 
aii  instrument,  men t  void  as  against  another  underwriter,  and  objected  to  on 
this  ground  ;  the  Court  declared,  that  it  extended  only  to  nego- 

ESTOPPELS. 

(/t)  Vide  ante,  p.  71,  n.  (?/). 

If  tlie  principal  in  the  letter  of  attorney  under  seal,  give  it  a  false  anterior  date 

for  tlie  piii-pose  of  leftHlising  prior  acts  of  the  attorney,  he  is  estopped  to  aver  or 

prove  that  it  was   in   fact  executed  at  a   subsequent  period.     MiUikeuY.  Coombs, 

1  Greenl.  Rep.  343. 

^-  A  grantor  will  not  be  permitted  to  explain  his  own  deed,  even  where  he  is  not  in- 

/         teresied.  Revere  v.  I^onard,  1  Mass.  Rep.  91. 

In  ejectment,  the  defence  set  up  was  a  conveyance  from  the  plaintiff  to   a  third 
person  before  the  suit,  and  to  repel  this  tiie  plaintiff  was  permitted   to  prove  that  at 
)  the  time  of  executing  the  deed,  both  the  grantor  and  grantee  were  out  of  possession. 

I  Phelps  V.  Suffe,  '2  Da'fs  Rep.  151. 

A  deed,  which  on  the  face  of  it  purports  to  be  a  defeasance,  and  to  be  executed 
at  ihe  same  time  with  another,  estops  both  parties  from  saying  to  the  contrary. 
Bridge  ■v.  Wellington,  1  Mass.  Rep.  219. 

If  a  tenant  in  a  writ  of  entry,  wheieiu  a  freehold  is  demanded,  plead  the  general 
issue,  lie  thereby  admits  that  he  is  tenant  of  the  freehold,  and  is  estopped  from 
proving  that  be  has  not  the  freehold,  but  is  a  tenant  at  will.  Kelleranv.  Brown, 
A  Mass  Rep.  H3. 

A  confession  by  a  plaintiff  on  record  of  the  truth  of  the  defendants  plea  of  plene 
admiiiistravit,  would  forever  be  an  estoppel  to  him  in  maintaining  another  actioa 
for  the  same  cause.  Hunt  v.  IVIdtney  adm.  ibid.  620. 

So  if  one  endorse  a  writ  with  his  name  only,  without  adding  the  capacity  in  which 
lie  acts,  he  will  be  estopped  from  denying  that  he  endorsed  as  the  plaintiff's  agent. 
Gilbert  v.  J\i\aitucket  Bank,  5  Do.  97. 

AVhere  a  security  is  in  fact  made  contrary  to  the  provisions  of  the  Statute,  the 
party  attempted  to  be  charged  is  not  estopped  from  alleging  any  facts  which  shew 
its  illegality.  Farrev  adm.  v.  Barton  et  al.  ibid,  395.  Bayley  et  al.  v.  Taber  el 
al.  ibid.  286. 

A  person  having  a  right  to  recover  in  a  real  action,  is  not  barred  by  the  execution 
of  a  deed  purporting  to  be  a  conveyance,  but  by  which  his  right  does  not  pass  unless 
by  way  of  estoppel,  as  between  tlie  parlies  to  (he  deed.  Wolcot  et  al.  v.  Knight  et 
al.  6  bo.  421. 

If  in  the  course  of  pleadings,  the  party  who  relies  on  matter  of  estoppel,  has  no 
opportunity  to  plead  it,  he  mav  shew  it  in  evidence,  but  when  the  matter  to  which 
the  estoppel  applies  is  directly  averred  or  denied  by  one  p*i"ty,  and  the  otiier  takes 
issue  on  the  fact,  instead  of  pleading  the  estoppel,  he  waives  it,  and  the  jury  are  at 
liberty  to  find  the  truth.  Howard  v.  Mitchell,  14  Mass.  Rep.  241. 

The  assignee  of  a  reversion  sues  in  debt  for  rent  which  was  reserved  by  deed,  to 
which  the  lessee  pi.  ads  a  parol  agreement  between  him  and  the  lessor,  made  before 
the  tlemise,  by  which  he  was  to  lend  to  the  lessor  a  sum  of  money,  the  interest  of 
which  was  etiual  to  tlie  rent  reserved,  and  payable  on  the  same  days,  and  that  the 
rent  and  interest  should  he  mutually  set  off  against  each  other.  It  was  holden  a 
good  defence  to  the  action,  and  that  defendant  was  not  estopped  from  pleading  it. 
Farley  v.  Thompson,  \5  Do.  18. 

In  an  action  by  a  mortgagee  for  possession  of  the  mortgaged  premises,  the  mort- 
pagor  defended  on  the  ground  of  usury  ;  but  failing  in  proof,  the  mortgagee  had 
'udgment.     Afterwards  the   mortgagor  conveys  his  right  to  a  third  person,  who 


WITNESSES.  255 

^mWe  instruments,  and  he  was  admitted  to  give  evidence  de- Ch.m.  9.  3. 
structive  of  the  policy.     It  had  been  in   former  cases(l)  deter- ^;;;^''^",J^^;^;;' 
mined,  that  a  man   attesting  the   execution   of  a  will  was  not  ^n  instrument, 
thereby  estopped    from  proving  the    insanity  of  the  testator,    ^' 
thouffh  it  went  much  to  his  credit;  and   in   a  late  case,(2)  in,,"~~~~ 

o                                                                                                                         ^    '  ( 1  )  W  right 

___ _ —  <lein.  Clymei' 

brings  his  writ  of  entry  against  the  mortgagee,  and  would  support  his  action  by  l>''oof  jj,,,.,.^  ^^4^ 
of  usury.     It  was  holden  that  he  was  estopped  by  the  former  Judgment,  and  that  the  J, owe  v.  Jol- 
morlgagee  miglit  avail  himself  of  the  estoppel  without  pleading  it.  Jldawj  v.  iia»7j«s, '''ffi,  1  Blue. 
17  Mass.  Jiep.  305.  305. 

A  party  is  estopped  from  gainsaying  a  title  which  is  recognised  by  a  deed  under /£,\  fopj^ine 
which  he  claims.    Denn  ex.  d.  M'Donalil  \.  King  et  al.  i    Coxe's  Rep.   43'2.     Et^,..  Lash- 
vide  Imbree  v.  Ellis,  2  Jolms.  Rep.  119.  Avnold  v.  Bell,  I  IJayiu.  Rep.  39".  brooke,  7  T . 

Where  a  person  conv<ys  land  in  which  lie  has  no  interest  at  the  time,  but  after- ^*'P-  ^'^'" 
■wards  acquires  title  to  the  same,  he  will  be  estopped  from  claiming  in  opposition  to 
his  deed,  either  from   the  grantee  or  any  person  deriving  title  under  him.    Jackson 
ex.  d.  Bauforth  et  al.  v.  Murray,  12  Jolms.  Rep.  201.     Jackso?i  ex.  Steve?is  v. 
Steveiis,  13  Johns.  Rep.  316.  Eaivkins  v.  Hanson,  1  Har.  &  JM'Hen.  Rep.  523. 

But  it  does  not  apply  as  between  vendor  and  vendee,  especially  where  the  l^itter 
has  not  received  possession  from  the  former.  BligliVs  les.  et  al.  v.  Rochester,  7 
Wheat.  Rep.  535. 

In  South  Carolina,  the  obligee  of  a  bond  was  held  to  be  estopped  from  invalidatiu" 
his  own  instrument,  by  destroying  the  right  of  an  assignee.  Canttj  v.  Sumpter, 
2  Bay's  Rep.  93. 

So  he  is  estopped  to  deny  his  right  to  convey.  Kid  v.  Mitchell,  1  J\i'ott  y 
M-  Cord's  Rep.  334. 

No  title,  not  in  esse,  will  pass  by  deed,  unless  it  contains  a  warranty,  in  which 
case  it  will  operate  as  an  estoppel.  Jackson  ex.  d.  M-  Crackin  v.  Wright  iiJohni. 
Rep.  193. 

It  is  not  a  legal  objection  to  a  conveyance  of  lands  in  Pennsylvania,  that  the  gran- 
tor is  out  of  possession.  Stoever  v.  Les.  of  Whitman,  6  Binn.  Rep.  41C. 

Estoppels  extend  to  parties  and  privies,  and  will  bind  them.  Gray  v.  Harrison, 
2  Hayxu.  Rep.  292. 

This  general  rule  does  not  extend  to  the  case  of  one  who  made  a  deed  as  attorney 
of  another,  though  it  would  to  his  principal.  ^Jshton  v.  Jones,  ibid.  298. 

If  an  executor  or  administrator  confesses  judgment,  or  suffers  one  by  default,  he 
,s  estopped  from  denying  assets,  to  the  extent  of  that  judgment,  as  far  as  it  regards 
the  plaintiff  therein.  Ruggles  et  al.  v,  Sherman,  14  Johns.  Rep.  446. 

Where  a  Statute  requires  a  bond  to  be  taken  in  double  the  value  of  the  thing  con- 
cerning which  it  is  executed,  and  the  parties  voluntarily,  and  without  fraud,  assent 
to  the  insertion  of  a  given  sum  as  equal  to  double  the  value,  they  are  estopped  to 
deny  that  is  double  the  true  value.  Speake  v.  U.  States,  9  Cranch's  Rep.  2S. 
Mahsuall  C.  J.  dissentiente. 

A  tenant  is  estopped  Irom  contesting  the  title  of  his  landlord.  Mei'vinet  al.  v. 
Camp,  et  al.  3  Con.  Rep.  35. 

The  plaintifT  suing  as  administrator  of  a  third  person,  is  not  estopped  by  the  acts 
of  his  wife,  when  sole  in  her  private  capacity.  Millisonv.  J\'icholso7i,  Rep.  jm  CV. 
of  Conf.  499.  S.  C.  2  Hayvi.  Rep.  306. 

An  assignee  by  estoppel,  cannot  Oe  allowed  to  maintain  an  action  of  covenant. 
.^'e8bit  v.  JVesbit  et  al.  Tayl.  Rep.  82. 

A  party  holding  under  a  conveyance  in  fee,  deduced  from  the  husband  of  the  de. 
mandant  in  dower,  is  estopped  from  controverting  the  seisin  of  the  husband.  Ban- 
:roft  V.  White,  I  CcUnes'  Rep.  185.— Am.  Eo. 


256  WITNESSES. 

Ch.  HI.  s.  4.  which  that  of  TValton  v.  Slielley,  came  to  be  re-considered,  and 
-st-.ppvd  by  underwent   much   discussion,  it  was   solemnly  decided   by  the 

nis  own  wii.  j  J 

,. Court  of  King's  Bencli,  one  Judge  only  (Mr  J.  Ashhurst)  dis- 

(1)  Ricii  V.     senting,  that  in  an  action  by  an  endorsee  of  a  bill  of  exchange 

X°PP'''g<        against  the  acceptor,  the  latter  might  call  the  payee  and  endor- 

224-.  Esn.irf  ser  to  prove  that  the  bill  was  void  in  its  creation,  as  being  drawn 

^•^-  in  Zonrfon  without  stamp,  though  dated   abroad;  and  that  the 

case  of  Walton  v.  Shelley  was  not  law.     So  in  another  case,(l) 

Lord  Kenyon  held  the  endorser  of  a  bill  of  exchange  (he  being 

released  by  the  acceptor)  a  competent  witness  to  prove  that  he 

parted  with  it  to  the  plaintiff  on  a  usurious  consideration.     We 

are  now  consequently  to  consider  the  rule  as  no  longer  existing. 

It  has  in  some  cases  been  doubted  also,  how  far  persons  who 

have  passed  as  married  to  the  world,  may  be  admitted  to  prove 

they  were  not  so,  in  a  question   as  to  the  legitimacy  of  their  is- 

Cowp.  594.     sue,  and  several  contradictory  decisions  have  taken  place  on  this 

point.*     In  questions  of  legitimacy.  Lord  Mansfield  said,  that 

Goodright       as  to  the  time  of  the  birth,  the  father  and  mother  were  the  most 

V.  Moss^*^"^  proper  witnesses  to  prove  it ;  and  in  the  principal  case,  decla- 

Co\vp.59l.     rations  of  the  deceased  parents,  that  a  child  was  born  before  the 

marriage,  was  admitted  ;  but  he  added,  that  it  was  a  rule  founded 


•  Rex\.  Stcckland,  Burr.  S-  C.  508.  In  a  sessions  case,  proof  was  given,  that 
two  p<  rsons  had  cohal.ited  togitht-ras  man  and  wife  for  thirty  years,  and  the  ses- 
sions refused  ti)  hear  the  supposed  husband  examined,  to  prove  that  no  marriage  had 
in  fact  taken  place  between  them,  and  the  Court  of  King's  Bench  hi  Id  the  decision 
to  be  right.  But  in  Rex  v.  St.  Peter,  Burr.  Ses.  Cas.  25  ;  £ui.  jY.  P.  112,  it  was 
held  tlial  the  supposed  husband  was  a  competent  witness  to  disprove  the  marriage- 

In  Standeiiv.  Standen,  Peake''s  Cas.  32.  Loid  Kksyos  permitted  a  man  who 
had  been  in  fact  married,  to  prove  that  the  baiuis  of  marriage  were  not  duly  pub- 
lished ;  and  in  a  still  later  case  which  came  before  the  Court,  the  reputed  wile  was 
held  to  he  competent  to  prove  she  was  not  mairied.     Thus,  in 

Pex  V.  Inhabitants  of  Bramley,  6  T.  Rep.  330,  on  the  hearing  an  appeal  from  an 
order  of  removal,  the  respondents  produced  evidence  to  shew  the  setilemt-nt  of  the 
pauper's  father  was  at  Bramley  ;  and  in  order  to  prove  his  marriage  with  the  mother 
produced  witnesses  to  prove  that  they  cohab'ted  togt-ther,  and  were  reputed  as  man 
and  wife.  The  appellant  ofTfi-ed  to  produce  the  mother  to  shew  that  she  never  was 
married,  or  that  if  she  ever  was,  the  ceremony  took  place  in  Ireland,  under  such 
circumstances  as  the  appellants  contended  bv  the  laws  of  Ireland,  rendered  it 
Avholly  void  This  was  objected  to,  and  the  Court  of  Quarter  Sessions  being  of  that 
opinion  rejected  it,  subject  to  the  opinion  of  the  Court.  Lord  Kento.x  said,  this 
evidence  was  certainly  admissible,  though  the  Justices  of  sessions  were  tojudge  as 
to  the  effect  of  it.  His  Lordship  then  mentioned  i?ex  v.  St  /"e^rr,  and  said,  th«re 
are  many  other  cases  in  which  it  has  been  decidrd,  that  the  parents  may  be  called 
as  witnesses  with  respect  to  the  legitimacy  of  their  issue  ;  and  if  they  may  be  called 
to  prove  they  are  legitimate  children,  th'  re  is  no  reason  why  they  should  be  cmsi- 
dered  as  incompetent,  when  called  to  prove  thai  the  children  are  illegitimate;  but 
in  all  these  cases  such  testimony  is  open  to  great  observation. 


WITNESSES.  g^y 

in  decency,  morality,  and  policy,  that  they  should  not  be  per-  ch.  in  s  4 
nutted  to  say  after  marriage,  that  they  had  no  connection,  and  Estopped  by 
therefore  that  the  offspring  was   spurious,  more  especially  the        '""*'' 
mother,  who  was  the  offending  party  ;  (hat  point,  his  Lordship 
added,  was  solemnly  determined  at  the  delegates.     The  ques- 
tion of  access  or  non-access,  was  totally  different  from  giving 
evidence  of  the  time  of  the  birth  ;  and  it  was  clear,  that  the  de- ibid.  592. 
clarations  of  a  father  or  mother  could  not  be  given  in  evider.ce 
to  bastardise  the  issue  born  after  marriage.* 


»  In  Rex  V.  Reading,  Cos.  Temp.  Hard  79.  On  an  order  of  bastardy,  the  per- 
son on  whom  the  bastard  was  eharged  to  be  got  was  a  married  wonjan,  and  the 
Court  held  that  she  was  conipetenl  to  pn  Te  the  criminal  eonvi-rsation  of  the  defend- 
ant wiih  hrr,  but  not  ihe  non-acc^-ss  of  her  husband.  And  in  Rex  v.  The  Inhabi- 
tants oj  Kea,  11  East,  Ijii,  it  was  holden  th;it  a  woman  whs  equally  iiiadmissiMe  to 
prove  the  non-acc  ss  rd'ter  her  husband's  death  as  in  his  life  time.  In  jRex  v.  In- 
habitants of  St.  Mary  J\'ot!ingham,  \3  East,  57,  the  Court  heltl  thni  a  bastard 
might  be  examined  to  prove  his  own  ilf  gitiitmcy,  and  that  ihe  reput'd  fitht-r  might 
alsfj  be  examined,  (if  he  chose  to  admit  the  fact)  though  he  was  not  compellable  to 
answer. 


SECTION  V. 

Of  persons  who  are  privileged  from  giving  evidence. 
I  OBSERVED  before,  that  no  one   could  be  compelled  to  give  Ch.  III.  s.  5 


evidence  which  tended  to  charge  himself  with  a  crime  ',*{i)  and 
therefore  the  putative  father  of  a  bastard,  though  he  may  volun- 


•  As  to  a  witness  being  interrogated  to  that  which  would  render  him  liable  to  a 
criminal  prosecution  or  in  a  civil  suit,  vide  p.  236,  n.  (r). — Am.  Ed. 

{i)  In  Grinnell  v.  PMlUps,  I  Mass.  Rep.  541,  Sedbwtck  and  Sewell  Justices,  ad- 
mitted one  of  the  jurors  to  be  sworn  and  examined  respecting  thfir  conduct  in  find- 
ing their  verdict.  But  in  Bridge  v.  Eggleston,  14  Mass.  Rep  248,  the-  Court  said, 
"  that  it  had  been  ruled  in  a  capital  case  in  Suffolk,  that  jurors  should  not  be  re- 
ceived to  testify  to  the  motives  or  inducements  upon  which  they  had  joined  in  a 
▼erdiel " 

In  Vermont  it  has  been  decided  that  the  affidavits  of  jurors  cannot  be  read  to  set 
aside  their  verdict.  Robbins  v.  Ifinduver  et  al.  2  Ti/l.  Rep.  11.  S.  P.  Harris  V. 
Huntington  et  al.  ibid.  I '29 

The  testimony  of  an  arbitrator,  is  not  to  be  admitted  to  impeach  his  award.  Un^ 
derhill  v.  Van  Cortland  et  al.  2  Johns.  Chan.  Cus.  3.39 

Nor  to  prove  a  mistake.  JVewland  v,  Douglass,  2  Johns.  Rep.  62. 

L  1 


Privilege, 


258  WITNESSES. 

Ch.  III.  s.  .5  tarily  come  and  state  the  fact,  cannot  be  compelled  to  answer  a 

Privilege,    question  upon   the   subject  ;(1)  and  if  a  person  who  has  been 

"~~~— —  knowingly  concerned  in  the  writing  or  publication  of  a  libel  is 

iviL-'^^Xnt  ^^  called  for  the  purpose  of  proving  the  fact,  he  may  object  to  give 

tingham,  13 

East,  57.  " 

The  affidavits  of  jurors  cannot  be  received  to  impeach  their  verdict ;  but  (hey 
may  lo  exculpate  the  jurors,  or  in  support  of  their  verdfct.  Dana  v.  Tucker,  4 
Johns.  Itep.  487. 

Il  seems  that  an  arbitrator  like  a  juror,  is  inadmissible  to  shew  his  own  miscon- 
duct in  order  to  impeach  his  award.  Underhill  v.  Van  Cortland,  2  Johns.  Ch. 
Rep  349. 

In  Bwrell  v.  Philips,  1  G(dl.  Rep.  364,  a  juror  was  examined  to  prove  that  he 
sei)iiratt-d  harmlessly,  and  had  convi-rsfd  with  n')  one  fbout  the  case. 

MisconduL't  On  the  part  of  the  jury  to  imp  ach  their  verdict,  must  be  shewa  by 
other  testimony  than  their  own.  State  v.  JM'Leod,  I  Hawks'  Rep  344, 

Neither  the  jursrs  nor  the  officer  to  whose  cai  e  thuy  were  committed  can  be  com- 
ptUed  10  ti  stify  to  the  fact  of  their  s<  ijaration.  Hoivard  v.  Cobb,  3  Day^s  Rep.  310. 

In  Pennsyhatiia,  in  the  c-.ise  of  Leib  v.  Bolton,  1  Dull.  Rep.  82,  on  a  rule  to 
sliew  cause  why  the  rv{{\vni)(-aju7'tiofi7i(j7urt/shO{ih\  not  be  set  asi<le,  the  depositions 
of  the  jurors  were  admitted. 

Biit  \n  A'e^v  Jerset/ \n  a  similar  case,  they  were  refused.  Schank  \ .  Stevenson 
adm.  1  Penn.  Re/i.  387. 

In  Zuber  v.  Geigar,  2  Yeates''  Rep.  522,  a  paper  of  calculations  was  received 
from  the  jury  to  shew  the  mode  of  adjusting  ttie  verdict. 

In  CoTvpei'thii'cdte  v.  Jo7ies  et  al  2  Didl.  Rep.  55,  it  appears  that  the  affidavits  of 
jurors  were  read  to  ascertain  the  manner  in  which  the  verdict  was  agreed  upon. 
Et  vide  Bradley's  les.  v.  Bradley,  4  Do.  1  li.  Sed  vide  the  strictures  by  Yeates  J. 
on  the  report  of  this  case  in  i  Bin7i.  Rep.  157. 

In  Commomvealth  v.  Keffcr,  Addis.  Rep.  296,  grand  jurors  were  admitted  to 
prove  the  intoxication  of  one  of  the  grand  jury. 

In  the  case  of  Les.  of  Cliiggag-e  v.  Swan,  4  Biiin.  Rep  150,  Yeates  J.  said, 
that  the  testimony  of  the  jurors  themselves  \v«s  not  admissible  to  impeach  their  ver- 
dict on  the  grourid  of  misconduct. 

In  JVew  .Jersey,  vide  Brewster  v.  Thompson,  1  Code's  Rep.  32. 

In  Ritchie  v.  Holbrooke,  7  Serg.  &  R.  Rep.  458,  where  it  appeared  by  the  affi- 
davit of  one  of  the  jurors,  that  after  they  had  retired  to  consider  of  their  verdict,  that 
their  foreman  declared  that  the  plaintiff  had  satrsfied  him  with  regard  to  a  difficulty 
in  the  plaintiff's  account,  in  a  conversation  he  had  with  him  out  of  Court,  and  after 
the  jury  were  sworn,  the  Court  granted  a  new  trial. 

In  Price's  exr.  v.  Warren  adm.  of  Fiiqna,  1  Hen.  &  Mttnf  Rep.  385,  the  Court 
unanimousiy  determined  that  a  new  trr;d  oirght  not  to  be  granted  on  the  affidavits  ot 
two  of  tb<i  jurors  that  they  were  influenced  in  their  ver-dict  by  information  given  by 
one  of  their  own  body  in  the  jury  room.  Sed  vide  Cochran  v.  Street,  1  (Fash.  Rep. 
103,  where  a  new  trial  was  granted  on  the  affidavit  of  some  of  the  jurors. 

In  Anderson  et  al.  v.  Fox  et  al.  2  Hen.  &  Alimf  Rep.  245,  it  was  decided,  that 
where  the  damages  were  evidently  excessive,  the  testimony  of  the  jurors  will  be 
admitted  to  declare  their  motives  in  giving  them. 

In  J\'orth  Carolina,  misconduct  on  the  part  of  a  jury,  to  impeach  their  verdict, 
must  be  shewn  by  other  testimony  than  their  own.  State  v.  M'Leod,  I  //awfrs' 
Rep.  344. 

So  in  Kentucky.  Taylor  v.  Giger,  Hardin^s  Rep.  586. 
'  In  Maryland,  vide  Bladen's  les.  v.  Cockey,  1  Har.  &  M^Hen,  Rep.  230. 

For  new  trials,  vide  post.  p.  263,  Ch.lll.  s.  6 — Am.  Ed. 


WITNESSES. 


259 


any  evidence  tending  to  prove  his  own  criminality ,(/c)*     It  was  ch,  iir.  s.  5. 
also  at  one  time  held,  that  the  law  protected  a  man's  pecuniary    P'-'^i-ge. 
interests,  as  well  as  his  person,  and  that  therefore  he  was  not  — — — 
compellable  to  give  any  answer  which  might  subject  him   to  a 
civil  action,  or  charge  himself  with  a  debttCl)     But  as  a  man  (0  Title  v. 

°                                                          ^  (irevtt,  2 

— — — Lord  Itayrn, 

(k)  The  testimnny  of  a  witness  tending  to  fix  a  fraud  upon  himself,  oiiglil  not  to  be 
regai'ded.    CUdborne  v.  Parish,  '2  Wash.  Rep.  146. 

It  is  the  uniform  practice  of  Courts  of  Justice,  to  ailhi-re  to  the  maxim,  nemo  te- 
iieUir  seipsnm  accusare,  both  as  to  wiliicsses  and  jurors.  RespnbUcu  \.  Gibhs. 
3  Yeates'  Rep.  4.i9.  A'.  C.  4  Ball.  Rep.  '253.  S.  V.  Les.  of  Gatbruith  et  al.  v. 
Eichelberger,  ibid.  545. 

In  an  action  of  debt  to  recover  the  penally  under  the  Act  of  Congress,  J\f<iy  10th 
1800,  for  transporting  slaves  from  one  loreij;u  port  to  another,  a particeps  crimim's, 
after  the  expiration  of  two  years  fioHithe  cominission  of  the  offence,  w'lhoui  any 
prosecution  being  commenced,  maybe  compelled  to  testify  against  tht-  defendant, 
though  such  witness  has  been  out  of  the  jurisdiction  of  the  United  States,  h  consi- 
derable part  of  the  two  years.  The  United  States  v.  Smith,  4  Dai/'s  Rep.  121. — 
Am.  Ed. 

•  In  Maloney  v.  Bartley,5  Campb. '210,  a  person,  who,  by  the  direction  of  a 
magistrate's  clerk,  had  written  an  txtra-judicial  affidavit,  which  was  afterwards  sued 
upon  as  a  libel,  was  calh-d  for  the  purpose  of  proving  that  he  had  wiitten  it  by  the 
order  of  the  defendant,  and  Mr.  Baron  Woon  held,  that  he  was  not  obliged  to  an- 
swer any  question  as  to  his  writing  it  by  the  direction  of  the  defendant;  and  in 
Stevenson  V.  Jones,  Stafford  Sp.  Jlssiz.  1821,  which  was  an  action  for  a  libel  in- 
serted in  the  Stafford  newspaper,  the  printer  having  proved  that  certain  alterations 
and  interlineations  were  made  aft'-r  the  libel  had  been  delivered  by  the  defendant 
to  him,  his  servant  was  called,  and  proved  ihiit  the  word  Burton  (one  of  the  inter- 
lineations] was  written  by  him  by  the  directi<in  of  £o-ioers,  an  occasional  cl-  rk  of 
Jones.  Boivers  was  then  called  and  asked,  whether  he  had  given  such  iliri-ction. 
He  objected  to  answer  the  question  as  tei.ding  to  criminate  himself,  and  the  objec- 
tion being  supported  by  the  defenilant's  counsel,  and  opposed  by  those  of  the  plain- 
tiff, PaukJ.  rJled,  that  be  was  co  npellable  to  answer,  because  he  might  by  the 
direction  of  the  defendant,  or  any  other  person,  give  orders  for  the  alteiation  of  a 
pan  rcular  word  without  himself  knowing  the  contents  of  the  paper,  and  if  he  did 
not  know  them,  he  would  not  be  guiliy  of  a  libel.  He  then  swoie  thai  he  ordered 
Burton's  name  to  be  inserted  without  any  authority  from  the  defendant;  and  upon 
this  evidence  the  plaintiff  failed  as  to  his  libel.  Another  libel  being  charged  ir  the 
declaration,  in  which  they  were  also  certain  interlineations  of  sonT  length:  Bovvers 
■was  next  examined  as  fu  them,  and  admitte<l  they  were  in  his  hand  writing,  when 
the  Judge  interposed  and  said,  that  now  no  further  questions  could  be  asked,  for  it 
■was  impossible  tliHt  he  could  make  long  int'-rlineations  without  knowing  the  con- 
tents of  the  libi-1,  and  therefore  anv  further  evidence  would  tend  to  cri;niiiate  him- 
self. The  plaintiff  called  Jeve'al  other  witnesses  for  the  purpose  of  b.'-itiging  home 
the  libel  to  th(  defendant,  but  not  being  able  to  do  so  was  ultimately  nonsuited. 

+  Pain  V.  Harffrnve,  K  B.  Sit.  at  Guildhall  after  Hi!.  Term,  35  Geo.  3.  M.  S. 
Assumpsit  Pir  niou.  y  h  .d  and  received.  The  defencUnt  had  been  clerk  to  the  pljin» 
tiff,  who  w^s  a  fon5i<)e;'able  wharfinger,  and  had  received  several  sums  of  money  in 
that  cha-aC'  r,  which  h»il  wc.x  b  en  paid  over  to  the  plaintiff. 

The  (leteo'laiit  conieu'teil,  ttiai  lit  wa<!  not  liable  to  |ia\  tuis  money  to  the  plHint'fT, 
having  paid  it  over  to  on-  Wright,  another  clerk  of  the  plaintiff's,  who  was  autho- 
rised to  receive  it  from  hira. 


ggQ  WITNESSES. 

Ch.  m.  s.  5.  cannot,  by  making  his  interest  the  same  as  that  of  the  party  who 
Pnvii  s;e.  j^^g  j^  ^.\^\^^  ^0  j,[s  testimony,  deprive  such  party  of  the  benefit  of 
———'-^  \l .  so  neither  could  lie,  by  voluntarily  acquiring  an  interest  the 
PerkiiT^*  ot'i^r  way,  enable  himself  to  object  to  give  evidence  ;  and  there- 
1  Sti-a.  406,    fore,  where  a  subscribing  witness  to  a  promissory  note  afterwards 

became  bail  for  the  maker,  he  was  compelled  to  give  evidence 

of  the  execution.* 

To  prove  this  c  ise,  he  culled  Wright  as  a  witness,  who  swore  that  he  knew  the 
state  of  the  defendant's  account,  and  ihat  no  money  was  due  from  the  defendant  to 
the  ph.intifF.  Upon  which  Erskine,  tiie  piaintiif's  counsel,  asked  him,  whether 
some  monev  was  not  due  from  some  person  to  the  plaintiff:  a'ld  the  witness  demur- 
ring to  this  question,  Lord  Kenton  said,  that  he  would  not  oblige  him  to  answer 
any  queslioii,  which  misrht  lend  to  cha. ge  himself  with  the  debt.  A  man  might 
come  voluntatily,  and  charge  himself  with  a  debt,  but  he  could  not  be  compelled  to 
charge  himself  civil!)  ,  any  luore  than  to  make  himself  liable  to  a  criminal  prosecu- 
tion. 

The  jury  btlieving  that  Wright  y/AS  aathorised  to  receive  this  money,  and  that 
it  had  bi-eii  pwid  tn  him,  wei  e  about  to  find  a  verdict  for  the  defendant,  when  the 
plaintiff  chos--  tn  be  nonsuited 

Baylies  v  Towgood,  K.  B.  St.  at  Guildlmll,  after  Mich.  Term,  37  Geo.  3.  M.  S. 
Debt  on  Stat.  7  Ge'j.  2,  c.  8,  iigc-^insi  stock  jobbing.  The  plaintiff  called  JSTordou, 
the  broker  who  made  the  contracts,  to  prove  the  fact.  By  the  4lh  sect,  of  the  Act 
of  Parliiiment,  he  is  siibjectc  it  to  a  penalty  of  500^.  He  objected  to  answer  any 
question  which  niis^lii  tend  to  charge  himself  with  the  penalty.  Gibbs,{ov  the  plain- 
tiff contended,  thai  ;is  this  was  not  an  indictable  offence,  but  merely  subjected  the 
party  lo  a  pecuni.iry  penalty,  he  coulil  not  refuse  to  be  examined.  Lord  Kenton 
•was  of  opinion,  he  c')ulil  not  compel  him  to  give  evidence,  which  would  subject 
him  to  a  penally.  For  want  of  olher  evidence,  the  plaintiff  was  nonsuited.  The 
Court  of  Knig's  Bench  afterwards  gave  time  to  th<-  plaintiff  to  proceed  to  trial  in  two 
other  actions  broiijilit  by  him  against  other  persons,  until  the  time  within  which  the 
action  against  the  broker  is  to  be  commenced  had  elapsed.  Vide  Raynes  v.  Spicer, 
7  T.  Rep.  178. 

•  Pending  the  impeachment  against  Lord  JMelville,  the  doctrine  contained  in  this 
chapter  underwent  much  iliscnssion  in  both  Houses  of  Parliament,  and  the  followiDg 
questions  were  put  to  the  Judges  by  the  House  of  Lords,  viz. 

1.  Wh'ther,  according  to  law,  a  witness  can  be  required  to  answer  a  question  re- 
levar>t  to  tlie  matter  m  issue,  the  answering  which  has  no  tendency  to  accuse  him- 
self, but  the  answering  which  may  establish,  or  tend  to  establish,  that  he  owes  a  debt 
recoverable  by  civil  suit? 

2.  \\  h' ther,  according  to  law,  a  witness  can  be  required  to  answer  a  question 
relevant  to  the  matter  in  issue,  the  answering  of  which  would  not  expose  him  to  a 
criminal  prosecution,  but  might  expose  him  to  a  civil  suit,  at  the  instance  of  his  ma- 
jesty,  for  the  recovery  of  profits  derived  by  him  from  the  use  or  application  of  pub- 
lic moMcv  contrary  to  law  ? 

3.  Whether  a  person  proffered  to  be  examined  as  a  witness,  and  who  is  to  be 
discharged  from  debts  in  case  he  fully  discloses  every  act,  matter,  transaction,  and 
thing  within  his  knowledge,  concerning  which  he  sh-dl  be  examined,  and  is  tore- 
main  liable  to  debts  if  he  does  not  so  disclose,  is  a  witness  whose  testimony  may  be 
repelled  on  the  ground  of  interest  ? 

The  Judges  delivered  their  opinions  seriatim,  but  there  being  much  difference  of 
opinion  among  them,  it  was  thought  necessary  to  clear  up  the  doubts  which  existed 


WITNESSES.  2Qi 

by  passing  a  declaratory  Act  on  the  subject ;  and  accordingly  a  bill  was  introduced  q\^  jjj  g  5 
into  the  House  of  L-rds,  which  was  at'icrwards  passed  into  a  law  in  the  tollowing  Privilege, 
terms  :  — ____ 

46  Geo.  3,  c.  3". — An  act  to  dixlare  the  law  with  respect  to  witnesses  refusing  to 

answer 

Whereas  doubts  have  arisen  whether  a  witness  can  by  law  refuse  to  answer  a  ques- 
tion  releviint  to  the  matter  in  issue,  the  ausw.  ring  of  wliicli  has  no  tentlency  to  ac- 
cuse himself,  or  to  exjiDse  him  to  any  penalty  oi-  forfeiture,  but  the  answering  ot 
which  may  establish  or  tend  to  esf.iblish  that  he  owes  a  debt,  or  is  otherwise  sub- 
ject  to  a  civil  suit  at  the  instance  of  his  majesty,  or  of  some  olht-r  person  or  peisons  : 
Be  it  therefore  declared  and  enacted,  by  the  King's  most  Excellent  Majesty,  by 
and  with  the  advise  and  consent  of  the  Lords  spiritual  and  tempoi-al,  and  Commons, 
in  this  present  Parliament  assembled,  and  by  the  authority  of  the  same,  that  a  wit- 
uess  cannot  by  law  refuse  to  answer  a  question  relevant  to  the  matter  in  issue,  the 
answering  of  which  has  no  tendency  to  accuse  himself,  or  to  expose  him  to  penalty 
w  forfeiture  of  any  nature  whatsoever,  by  reqson  only,  or  on  the  sole  ground,  that 
the  answerins;  of  such  question  may  establish  or  tend  to  establish  that  he  owes  a 
debt,  or  is  otherwise  subject  to  a  civil  suit,  either  at  the  instance  of  his  majesty  or 
of  any  other  person  or  persons. 

A  rated  inhabitant  of  a  parish  is  considered  as  a  party  to  an  appeal  between  his 
parish  and  another  touching  the  settlement  of  a  pauper ;  and  being  as  such  directly 
interested  in  the  event  of  the  appeal,  cannot  be  compelled  In  ijive  evidence  by  the 
adverse  parish  under  the  above  Act  of  Parliament.  liex  v.  Woburn,  10  East,  395, 
Rut  see  the  Stat.  54  Geo.  3,  c.  170,  ante,  157. 


SECTION  VI. 

Of  the  examination  of  tvitnesses. 

When  a  witness  was  liable  to  any  objection  on  account  of  Ch.  in.  s.  6, 
interest,  &c.  the  old  rule  was  either  to  examine  him  upon  the     ■*""""  ' 
voir  dire,  as  to  his  situation,  or  to  call  other  witnesses  to  prove ,7"    ., 

^  .  Vide  Abra- 

the  fact  which  rendered  him  incoinpetent.(/)     The  party  against  hams t^.  Bunn, 
whom  he  was  produced   had  his  election  which  of  these  modes  wr^5"'l"'.V.-, 

•  10  Mod.  193. 

he  would  pursue,  but  he  could  not  adopt  both  ;  and  if  the  wit-  Lord  Lovai'3 

Case,  9  St. 

IjTr.  645-6. 

{l)  A  witness  on  his  voire  dire  having  denied  any  interest  in  the  cause,  may  be 
interrogated  as  to  his  sitiiatioTi,  for  the  puipose  of  discovering  his  interest.  Iteid's 
les.  V.  Dodson,  1  Overtones  Rep.  396.  Baldwin  v.  West,  Hardbi's  Rep.  51.  Emer- 
ton  V.  Andrews,  4  JVlass.  Rep.  653. 

The  confessions  ot  a  witness  in  a  criminal  prosecution,  as  to  his  incompetencj',  are 

not  admissible  to  disqualify  himself.     Common-wenllh  v.  H'aite,  5  Mass.  Rep.  26L 

Where  a  witness  shews  his  interest  on  his  voire  dire,  arising  under  a  sealed  if^ 

strument,  and  by  parol  at  the  same  time  shews  it  discharged,  he  is  a  good  witness. 

fanning  et  at.  v.  My  rs  et  al.  Jliith.  JV.  P.  47. 

The  examinai  ion  of  a  witness  on  his  voire  dire,  being  upon  matter  collateral  to  the 
issue,  IB  not  bound  down  by  the  same  strict  rules  which  govern  an  cxaraiaation  in 
chief,  ibid. — Am.  Ed. 


/ 


'^Qli  WITNESSES, 

Ch.  III.  s.  G.  ness  denied  his  interest,  no  other  evidence  could  afterwards  be 
producea  to  prove  it,  tor  the  purpose  or  rendering  him  incom- 
petent;(m)  but  the  party  was  not  precluded  from  contradicting 
the  fact  so  sworn  by  other  evidence,  and  thereby  lessening  the 
credit  of  the  witness  with  the  jury.  If  he  appeared  to  be  incom- 
petent, either  by  his  own  examination  on  the  voire  dire,  or  by 
other  evidence,  the  objection  was  immediately  made;  for  if  not 
taken  before  he  was  sworn  in  chief,  it  was  considered  as  too  late 
after  he  had  been  examined  by  the  party  calling  him,  and  cross- 
Per  Buller  J.  examined  by  the  other  side  But  the  modern  practice  is  to 
/  •  ^'l'-''-'- swear  the  witness  in  chief  in  the  first  instance;  and  if  at  any 
time  during  the  trial  it  be  discovered  that  he  is  in  a  situation 
which  renders  him  incompetent,  it  is  then  time  to  take  the  ob- 


(m)The  interest  of  H  witness  cannot  be  prove'l  by  otiiei-  testimony  after  he  hasdenied 
it  on  his  voire  (lire.  Berry  v.  JVallin  et  al.  I  Overtoil's  Rep.  10".  fVelden  v.  Buck, 
Anth.  J\\  I\A'0,  71.  Smidhuood  et  al.  v.  Jlfitchell  et  al.  2  /layno.  Rep.  145.  Ray  v. 
Mariner  et  mt.  iliid.  .385.  Evam  v.  Eaton,  I  Peters'  Rtp.  .338.  Bridge  v.  JFel- 
lington,  1  Mim^Rep.  219.  Jllullel  v.  Mullet,  1  Root's  Rep.  501.  Coit  v.  Bishop, 
2  Do.  222.  Bidkt  V.  Biithr,  3  Day's  Rep.  '214.  Dorr  v.  Osgood,  2  Tyl.  Rep.  28. 
Wallace  V.  Child  et  al.   1  Ball.  Rej>.  7.  Mifflin  et  al.  v.  Bingham,  ibid.  111. 

Where  an  offer  has  been  made  to  prove  a  witnt-ss  inter  esteil,  he  may  still  be  ex- 
.•\mined  on  his  voire  dire,  when  the  testimony  oficred  has  been  overruled.  Main  v. 
^/e-wson,  Anth.  J\)\  f.\). 

When  a  witness  is  offered  by  one  party,  the  opposite  party,  by  other  witnesses, 
may  prove  him  interested,  and  he  will  thereupon  be  rejected.  Smallwoodv.  Mit- 
chell, 2  Hayxv.  Rep.  145,   ■ 

If  on<-  paity  has  proved  by  evidence  aliunde,  thit  a  witness  is  interested,  the  other 
cannot  offer  the  witness's  own  oath  to  prove  that  he  has  no  interest.  Vincent  v.  Les. 
of  Huff,  4  Serg.  &  R.  Rep  298. 

Wiiere  the  plaintiff  objected  to  ih'-  defendant's  witnesses  thai  they  were  inter- 
ested, and  that  it  would  appear  by  a  written  instrument  in  defendant's  hands  if  he 
would  produce  it,  which  he  retuse<l  to  do;  the  plaintiff  then  proved  the  existence  of 
the  writing,  and  ih-- Court  excluded  the  witness;  the  defendant  then  off-red  tlie 
V  ritinp;,  but  tlie  Court  refused  to  receive  it.  Mitchelson  v.  Enos,  2  Roofs  Rep.  515. 

To  pro»e  that  a  witness  was  interested  In  the  event  of  the  cause,  evidence  was 
offereil  to  prove  ihat  he  had  declared  he  was  interested  ;  and  it  was  held  the  evi- 
dince  was  admissible.  Colston  v.  JK'ichoh,  1  ffar.  £y  Johns.  Rep.  105. 
^  Biit  where  a  witness  swears  upon  his  voire  dire,  that  he  does  not  know  -whether  lie 
is  interested  in  the  svit  or  not.  his  interest  may  be  proved  by  other  evidence.  Shannon 
et  al.  v.  The  Commomvealtli  for  the  use  of  Lazarus,  8  Serg.  &  R.  Rep.  444. 

If  after  a  witness  has  been  sworn  on  his  voire  dire,  it  appears  from  his  own  testi- 
mony on  his  examination  in  chief  that  he  is  interested,  he  m-iy  be  rejected.  Cole's 
les.  v.  Cole,  1  Har.  &  Johns.  Rep.  S'S.  Et  vide  Swift  v.  Bean,  6  Jolms.  Rep.  523. 
Baldwin  v.  Wett,  Hardin's  Rep.  50. 

,^Bnt  if  it  appear  from  the  evidence  of  other  witnesses  only,  it  cannot  be  rejected. 
ibid. 

A  cross-exaniin.Jtion  under  a  rule  of  Court  fo  take  the  deposition  of  a  going  wit- 
ness, does  not  amount  to  an  examination  on  a  voire  dire,  and  will  not  preclude  the 
exenition  to  his  competency  at  the  trial.  Mifflin  et  al.  v.  Bingham,  1  Ball.  Rep. 
2/5.— Am.  Ed, 


WITNESSES.  263 

jection  ;  but  the  bare  circumstance  of  a  witness  being  disco-  Ch.  HI.  s.  6. 
vered  to  be  incompetent  after  the  trial,  is  not  alone  sufficient ^''''"""''"°°* 
around  for  a  new  trial;  however  it  may,  when  added  to  others,  " 
weigh  with  the  discretion  of  the  Lourt.(n)  Pe^rte,  i  t. 

Rep.  710. 

NEW  TRIALS. 

1.  Wliere  the  verdict  is  against  law  or  evidence — or  luhere  there  has  been  a 
mistrial. 

{n)  A  new  trial  will  be  granted  wliere  the  verdict  ot'the  jury  is  against  law.  Dilling- 
ham V.  Snow  ei  al.  5  Jlfass.  Jicp.  547.  C'oir.missioners  of  Berks  v.  Ross,  3  Binn. 
Rep.  520.  Pavne  v.  Trezevant,  2  Bay's  Rip.  23.  Mtinro  v.  Gardiner,  I  Rep, 
Const.  Ct.  S.  Car.  328.  MMcens  v.  Calhoun,  1  J\i'ott  &  M'Cord's  Rep.  425. 

Granting  of  new  trials  dependu  on  the  legal  discretion  oi ihe  Court,  guided  by  the 
nature  and  circumstances  oF  the  particular  case.  Steimnitz  et  al.  v.  Cuni/,  I  Dall. 
Rep.  254.  Bradley  V.  Bradley,  i  Do.  112.  Broteny.  Frost,  2  Bay's  Rep.  126. 
£'imballv.  Cady,  Kirb.  Rep.  41. 

So  in  J\ew  York.  Bnnn  v.  Boyt,  3  Johns.  Rep.  255.  Fleming  v.  Gilbert,  ibid. 
528.  SImmway  v.  Fowler,  4  Do.  425.  Duryee  v.  Dennison,  5  Do.  248.  Dole  v. 
Lyon,  10  Do.  447. 

So  where  there  has  been  a  mistrial.  Bond  v.  Cutlar,  7  J)Iass.  Rep.  205. 

So  a  new  trial  will  be  granted  where  the  verdict  is  manifestly  agninst  the  evidence. 
Hammond  v.  Wadhams,  5  JMass.  Rep.  353,  JVuit  v.  M'Aeil,  7  Do.  261.  Hoyt  v. 
Gilman,  8  Do.  336. 

In  JV'etu  York,  Hart  v.  Hosack,  I  Caines'  Rep.  25. 

In  South  Carolina,  Cockfieldy.  Daniel,  1  Rep.  Const.  Ct.  S.  Car.  193. 

Whenever  it  appears  with  reasonable  certainty  that  actual  and  manifest  injustice 
is  done,  or  that  the  jury  have  proceeded  on  an  evident  mistake,  either  in  point  of 
law  or  fact,  or  contrary  to  strong  evidence,  or  have  grossly  misbehaved  themselves, 
or  given  extravagant  damages,  the  Court  will  always  grant  a  new  trial.  Cowper- 
thivaite  v.  Jones  et  al  2  Dull.  Rep.  50. 

A  new  trial  was  awarded  in  a  feigned  issue  to  try  the  validity  of  a  will,  on  the 
dissatisfaction  of  one  of  the  two  Judges  who  tried  it.  Vanlear  v.  Vanlear,\  Yeates' 
Rep.  3. 

Bui  though  a  verdict  was  against  the  opinion  of  the  Judge  who  tried  the  cause, 
yet  if  it  depended  on  the  credit  of  witnesses,  a  new  trial  will  not  be  granted,  except 
io  extraordinary  cases.  Felly.  Goodet  cd.  2  Binn.  Rep.  495. 

Though  a  Judge  had  expressed  an  opinion  at  the  trial,  that  the  party  had  not 
made  out  his  case,  yet  if  he  does  not  declare  his  dissatisfaction  with  the  verdict,  a 
new  trial  will  not  be  granted.  Smith  et  al.  v.  Odlin,  4  Yeatts'  Rep.  468.  Ludlow  v. 
Union  Ins.  Co.  2  Serg.  &  R.  Rep.Wi. 

2.  Where  improper  evidence  has  been  admitted  at  the  trial. 

A  new  trial  will  be  granted  where  illegal  evidence  has  been  admitted  to  prove 
the  plaintiff's  declarations,  although  not  objected  to  at  the  time  by  the  defendant. 
Bridge  v.  Austin,  4  Mass.  Rep.  115.  Storer  v.  White,  7  Do.  448.  Vide  Jones  v. 
Fales,  4  Do.  245    Jones  v.  Alexander,  2  Do.  36. 

A  second  new  trial  was  awarded  after  trial  by  a  special  jury,  and  view  without 
costs,  improper  evidence,  which  was  afterwards  overruled  on  the  trial,  having  been 
disclosed  to  the  jury  on  the  view.  Stewart  v.  Richardson,  3  Yeates'  Rep.  200. 

3.  JVhere  proper  evidence  has  been  rejected  by  the  Judge. 

If  legal  aad  proper  evidence  be  rejected  by  the  Judge,  the  party  aggrieved  is  en 


2Q.^  WITNESSES. 

Ch.  111.  s.  6.      On  this  examination  of  a  witness,  as  to  his  situation,  he  may 

ExHiuinHtioi).  jjg  asked  any  questions  concerning  instruments  he  has  executed, 

&c.  without  producing  these  instruments  ;  for  the  party  against 


titlpfl  to  a  new  trial.  Himt  adm.  v.  Adams,  7  Do,  518.    Vide  Emerson  v,  Andrews, 
4  2)0.053. 

4.  For  a  misdirection  or  omission  of  the  Judge  in  summing'  up  the  cause. 

Where  a  jury,  under  the  direction  of  the  Judge,  have  found  a  verdict  either 
against  law  or  evidence  in  favour  of  the  defendant,  in  cases  where,  ou  the  merits,  the 
plaintiff  could  recovei-  but  ;i  small  sum,  the  Couit  have  refused  a  new  trial.  Boyden 
V.  Moore,  adm.  5  jllass.  Jifp.  S&S.  Vide  Dudley  y.  Sumner,  ibid.  iSS.  Ayl-win 
V.  Ulmer,  V2  Do  22.   Tyler  v.  Vlmer,ibid.  163. 

In  JVeiu  York,  vide  Brantinghum  v.  Fay,  1  Johns.  Cas.  255.  Hyatt  v.  Wood,  3 
Johns.  Hep.  239. 

But  not  if  justice  has  been  done.  Brazier  v.  Clap  et  al.  5  Mass.  Rep.  1.  Jones 
et  al.  V.  Fales,ibid.  101 .  J\/e-whall  v.  Hopkins,  6  Do.  350.  Snyder  v.  Finley,  I  Coxe's 
Hep.  78. 

It  is  gross  misbehaviour  for  any  one  to  speak  to  a  juryman,  or  for  any  one  to  per- 
mit a  juryman  to  converse  with  him  respecting  the  canse,  at  any  time  after  he  is 
summoned,  and  before  the  verdict  is  delivered.  Blaine's  les.  v.  Chambers,  I  Serg. 
&  R.  Rep.  169. 

It  is  not  sufficient  ground  to  grant  a  new  trial,  that  one  of  the  jurors,  after  they 
had  agreed  upon  their  verdict  for  the  plaintiff,  sealed  it  up  and  separated,  heard  a 
third  person  express  his  opinion  that  the  plaintiff  ought  to  recover.  WilUng  v.  Sioea- 
sey,  1  Browne's  Rep.  123. 

It  is  not  sufficient  cause  to  set  aside  a  verdict  that  one  of  the  jurors  was  an  alien. 
HoUings-worth  v.  Duane,  C.  C.  4  Dall.  Rep.  353. 

5.  Where  there  has  been  misconduct  of  the  jury — or  -where  an  objection  exists 
against  any  of  the  jurors. 

When  any  gross  misbehaviour  or  legal  improi>i-iPty  of  conduct  in  a  jury,  in  finding 
their  verdict,  shall  be  made  to  appear,  such  verdict  ought  to  be  set  aside.  Gnnnell 
v.  Phillips,  1  Mass.  Rep.  543.  Vide  Bulloch  v.  Ho'ford,  2  Roofs  Rep.  349. 

If  a  juror,  through  mistake  of  his  duty,  agree  to  a  verdict  again'^t  his  opinion,  be- 
cause he  believes  he  must  assent  to  the  verdict  of  a  major  part  i>f  the  jury,  it  it  no 
goofl  cause  for  a  new  trial.    Commoivwealtk  v.  Drr-w  et  al  4  Mass.  Rep.  391. 

A  new  trial  will  not  be  gianied  where  it  appears  that  a  juror  had  betted  on  both 
sides  of  a  cause,  unless  an  evident  bias  was  produced,  nor  where  some  of  them  have 
expressed  an  opinion  on  the  opening  of  the  cause.  Goodright  v.  M'  Causland  et  al. 
1  Teates'  Rep.  373. 

If  one  of  the  parties  discover,  before  the  verdict,  that  a  juror,  before  he  was  im- 
panelled, declared  that  he  had  made  up  his  mind  against  him,  he  must  lay  th-  mat- 
ter immediately  before  the  Court.  He  niust  not  take  the  chance  of  a  verdict  in  his 
favour,  and  keep  a  motion  for  a  new  trial  in  reserve.  M-  Corkle  v.  Binns,  5  Binn. 
Rep.  340. 

6.   Where  the  party  has  come  to  the  knoiuledge  of  new  evidence. 

If  a  party,  after  the  trial  of  a  cause,  come  to  the  knowledge  of  facts  which  would 
have  a  tendency  merely  to  discredit  a  material  witness  of  the  adv.^rse  panv,  it  is  no 
eood  cause  for  a  new  trial.   Common-wealth  v.  Drewetal.  iMass.  Rep.  391. 

So  in  JVcw  York.  Jackson  ex.  d.  Rowley  et  al.  v.  Kinney,  H  Johns.  Rep.  186 


WITNESSES.  265 

wliom  he  is  called,  not  knowing  the  witnesses  to  be  produced  Ch.  III.  s.  6. 
against  him,  cannot  always  be  prepared  with  the  evidence  to  ''-^"'^■""tion. 
prove  him  incompetent. 


Nor  if  by  due  diligence  he  could  have  prnciired  olher  material  testimony.  Bond 
V.  Cutlar,  7  Mass.  Rep.  '205.  Et  vide  De  Lima  v.  Glassell,  4  Hm.  &  Mwif.  Rep. 
369. 

In  J\rnv  York  it  has  heen  decided  that  it  ought  to  appear — 1st.  That  the  evidence 
has  been  discovered  since  the  last  trial.  2nd.  That  no  laches  is  imputable  to  the 
parly  ;  and  .3d.  That  the  testimony  is  material.  Vandervoot  v.  Smith,  2  Cuines' 
Rep.  155.  llrjllingsivorth  v.  JVapier,  .T  Do.  182.  Palmer  v.  MtdUgan,  ibid.  307. 

In  Pennsylvania,  vide  JMoore  v.  Philadelphia  Bank-,  5  Se'g.  &  R.  Rep.  41. 

The  Court  will  decide  on  the  materiality  of  the  evidence,  and  grant  the  motion 
or  not,  Hccordingly.    Halsey  v.  H'.atsoji,  1  Caines'  Rep.  24.   Kendrick  v.  DelafieUl, 

2  Do.  &7. 

Evidence  to  impeach  testimony  };iven  on  a  former  trial,  is  not  material  evidence, 
and  a  new  trial  will  not  be  granted  in  order  to  admit  it.  Halsey  v.  Watson,  1  Caines^ 
Rep.  24.  S.  P.  Shumxuay  v.  Fo-wler,  4  Johns.  Rep.  425.  S.  P.  Especially  if  the 
witness  is  dead.  Diiryee  v.   Dennison,  5  Johns.  Rep.  248.  S.  P.  Brown  v.  Hoyt, 

3  Do.  255. 

It  will  not  be  granted  to  admit  the  testimony  of  another  witness  to  the  same  fact, 
Steinbach  v.  Col.  Ins.  Co.  2  Caines''  Rep.  129.    Smith  v.  Brush,  8  Johns.  Rep  84. 

In  slander,  for  charging  plaintiff  with  felony,  a  new  trial  will  not  be  granted  to  let 
in  newly  discovered  evidence  in  support  of  a  plea  of  justification.  Barsv,  Root, 
9  Johns.  Rep.  264. 

Aliter,  if  the  new  evidence  goes  only  to  the  plea  of  not  .guilty,  ibid. 

On  a  motion  for  a  new  trial,  on  an  affidavit  of  newly  discovered  evidence  from 
A.  B.  a  man  oi good  character  and  reputation,  the  opposite  party  may  read  affida- 
vits to  question  his  credibility.  Pomroy  v.  Col.  Ins.  Co.  2  Caine.s^  Rep.  260. 

The  discovi-ry  of  oral  testimony,  after  trial,  is  not  a  ground  for  granting  anew 
trial.  Ecfert  v.  Des  Coudres,  1  Rep.  Const.  Ct.  S.  Car.  69.  Exrs.  of  Evans  v. 
Rogers,  2  J\&«  &  JVl  Cord's  Refj.  503. 

The  discovery  of  evidence  of  which  the  defendant  was  not  apprised,  but  consisting 
of  written  evidence  among  the  papers  of  his  testntor,  no  ground  for  a  new  trial. 
Bogart  et  al.  v.  Exrs.  of  Simons,  1  Rep.  Const.  Ct  S.  Car.  143. 

In  JVew  Jersey,  vide  Deacon  v.  Mien,  1  South,  Rep.  338. 

And  such  newly  discovered  evidi  nee  must  be  important,  and  shew  that  injustice 
has  been  done.  Jessup  v.  Cook,  1  ffalst.  Rep.  434. 

7.   Where  the  judgment  is  erroneous — or  -where  the  verdict  ought  to  have  been 
set  aside. 

A  review  will  not  be  granted  where  it  appears  to  the  Court,  on  an  inspection  of 
the  record,  that  the  judgment  complaitied  of  would  be  reversed  on  writ  of  error. 
Hilrt  V.  Uuckine,  5  Mass.  Rep.  260, 

A  new  trial  will  be  granted  for  the  purpose  of  correcting  a  mistake  in  a  judgment 
©ccasioneil  by  the  miscalculations  of  the  interest  on  a  promissory  note.  Ilsley  adm, 
V.  Knight,  1  Mass.  Rep.  467.   (Vhitiuell  v.  Atkinson,  6  Do  272. 

So  for  the  mistake  in  the  value  of  foreign  money.  Betts  v.  Death,  Addis.  Rep. 
267. 

A  new  trial  will  be  granted  where  it  appears  that  the  verdict  ought  to  have  beeo 
set  aside.  Pease  v.  Whitney  et  al.  4  Mass.  Rep.  507. 

A  new  trial  will  be  granted  where  the  verdict  is  for  the  defendant,  against  law 

M  m 


57 


266  WITNESSES. 

Ch.  111.  s.  6.  So  if  a  witness  on  examination  confess  that  he  was  originally 
Examination,  interested,  he  may  restore  his  competency  by  proving  that  he 
'"  has  been   since  a  bankrupt,  and  received  his  certificate,  or  any 

Botham  v. 

Swingler,  — 

T^^D  ^  *  ,  !'•  and  the  directions  of  the  Court.  Les.  of  Ross  et  al.  v.  Eason  et  al.  1  Yeates^  Rep. 
218.  Esp.  I64,         ^  „  , .  „  ^     ,, . 

g   Q_  l4.  Eimnet  s.  Robinson,  2  Do.  SI*. 

Wi\g  ctiam  Where  three  actions  against  the  same  defendant  were  tried  by  the  same  jurj',  and 

Rex  T.  Gis-      the  plaintiff  in  one  of  the  actions,  gave  evidence  applicable  to  a   case    in  which  he 

burn,  15  Last,  ^35  not  a  party,  but  which  tended  to  swell  the  damages  in  his  own  case,  the  Court 

granted  a  new  trial  in  all  of  them.  Cnnsequa  v.  Willing  et  al.  1  Peters''  Rep.  225. 
So  where  there  is  reason  to  believe  justice  has  not  been  done,  and  the  verdict  is 

against  the  weight  of  evidence.  Jackson  ex.  d.  Le  Roy  v.  Slei7iberg,  1  Caines^  Rep. 

167.  Mumfordv.  Smith,  ibid.  520. 

8.  Where  substantial  justice  has  been  done. 

A  new  (rial  will  not  be  granted  where  substantial  justice  has  been  done  by  the 
verdict.  C'ogs~u)ell  v.  Brown,  I  Mass.  Rep.  237.   Garish  v.  Bearce  et  al.  1 1  Do.  193. 

In  A''ew  York.  Depetjster  v.  Col.  Ins.  Co.  2  Cairns'  Rep.  129.  Smith  v.  Elder, 
3  Johns.  Rep.  105. 

A  new  trial  is  an  appeal  to  the  legal  discretion  of  the  Court,  and  unless  injustice  has 
been  done,  should  not  be  granted.  Jordaii  v.  JUeredith,  3  Yeates'  Sep.  318.  Com- 
7nonivcalth  v.  Eberle,  3  Serg.  SJ  R.  Rep.  9. 

If  justice  has  been  done,  the  Court  will  not  set  the  verdict  aside  on  account  of  the 
form  of  the  action.  Booden  v.  Ellis,  7  Mass.  Rep.  507. 

So  in  Connecticut.  Miller  v.  Talcott,  2  Root's  Rep.  115. 

So  in  Pennsylvania.  Rulstoriw  Ctimnuns,  2  Yeates'  Rep.  436.  Miller  v.  White, 
Tayl.  Rep.  312.  Tagertv.  Hill,  1  Rep.  Ct.  of  Const.  164.  Billevjs  v.  Bogan,  I 
Hay-M.  Rep.  13. 

And  in  JS'orth  Carolina.  Allen  v.  Jordari,  2  Do.  132. 

The  Court  will  not  set  a  nonsuit  aside,  where  it  appears  that  the  verdict  in  favou: 
of  the  plaintiff  would  be  against  the  evidence  proiluced  at  the  trial,  if  it  do  not  ap- 
pear that  other  evidence  exists.  Royt  v.  Gilman,  8  Mass.  Rep.  336. 

In  Vermont,  a  new  trial  will  not  be  readily  granted,  where  a  new  action  is  not 
barred  by  the  Statute,  because  the  jury  have  not  pursued  thedirectionsof  the  Judge. 
Smith  v.  Hubbard,  1  Tyl.  Rrp.  142. 

By  Stat,  in  that  Slate,  the  Courts  are  restricted  from  granting  new  trials,  except 
where  qui-stions  of  law  are  mistaken  by  the  jury  in  the  charge  of  the  Court;  and 
on  a  motion  for  a  new  trial,  because  the  verdict  is  against  law  and  the  direction  of 
the  Court,  if  it  appears  there  were  matters  of/act  as  well  as  of /aw  under  the  con- 
sideration of  the  jury,  and  if  the  jury  had  found  the  tacts  one  way,  they  h:id  applied 
the  law  correctly,  the  Court  will  not  consider  the  motives  of  the  jury,  but  will  pre- 
sume the  verdict  correct,  ibid. 

If  a  juror  disclose  by  intimation  the  event  of  the  verdict,  before  it  is  given  iu  Court 
it  is  good  ground  for  a  new  trial.   Orcutt  v.  Carpenter,  ibid.  250. 

Et  vide  in  Connecticut,  Tiueedy  v.  Brush,  Kirb.  Rep.  13.  Daiia  v.  Roberts,  1 
Root's  Rep.  134.  Bow  v.  Parsons,  ibid.  429. 

A  new  trial  will  not  be  granted  for  the  recent  discovery  of  nja/erm/ evidence,  sup- 
ported by  the  single  affidavit  of  the  party  in  interest.  The  motion  must  be  accom- 
panied with  the  affidavits  of  the  witnesses  recently  discovered.  Webber  v.  Ives, 
ibid.  443. 

In  Connecticut,  it  will  not  be  granted,  if  the  evidence  might  have  been  produced 
at  the  forn  er  trial.  jK'oyca  v.  Huntington,  Kirb.  Rep.  282.  Et  vide  Scott  v.  Tlie 
State,  I  Root\  Rep.  155.  The  State  v.  Lockeir,  2  Do.  84. 


WITNESSES.  ggy 

other  fact  whereby  his  interest  is  determined.  But  had  his  in-  Ch.  ill.  s.  c. 
terest  been  proved  by  other  evidence,  his  certificate  should  have^^''-""'""^"^"- 
been  produced  ;  and  if  a  release  be  given  by  or  to  the  witness. 

An  objection  tea  juror,  which  will  not  be  the  cause  for  a  principal  challenge,  will 
not  be  sufficient  cause  for  a  new  trial.   Chapman  v.  Wells,  Kirb.  Rep.  133. 

Ifan  fl/ien  be  (Iraun  and  impannellcd  asajiu'or,  it  is  a  good  cause  of  challenge 
but  not  of  a  new  trial  after  a  conviction.  The  State  v.  Qiiarrell,  2  Bay''s  Rep.  150. 
Hollingaioorth  v.  Dunne,  4  Dull.  Rep.  354. 

If  the  jury  refer  the  decision  ol  their  cause  to  chance,  it  is  a  good  cause  of  arrest  of 
judgment.  Warner  v.  Robin&on,  Kirb.  Rep.  194. 

9.  For  excessiveness  of  damages. 

The  Coui't  possess  the  power  to  grant  new  trials  for  excessive  damages  in  cases 
of  torts;  but  there  is  no  precedent  for  a  new  trial  in  aim.  con.  Shoemaker  y. 
Livezly,  2  Broivne's  fiep.285. 

But  the  case  must  be  a  rank  one,  to  induce  the  Court  to  set  aside  a  verdict,  in  an 
action  for  a  tort,  on  account  of  the  excessiveness  of  the  damages.  Sommer  v.  Wilt, 
i  Ser§:  &  R   Rep.  27. 

The  Court  will  not  grant  a  new  trial  because  the  jury  have  exceeded  legal  inter- 
est in  the  measure  of  damages,  for  delaying  payment  of  money,  unless  it  be  exces- 
sive. Respublica  v.  Lecazeet  al.  2  Dall.  Rep.  118.  S.  C.  1  Yeates*  Rep.  155. 

It  is  not  correct  to  say  a  new  trial  will  never  be  granted  where  the  jury  find  only 
7;owmfl/ damages.  Sheiick  v.  JMonday,  2  Browne's  Rep.  106. 

A  new  trial  cannot  be  granted  in  a  qui  tarn  action,  as  to  the  civil  part,  without  the  ' 
other.  Hannaball  v.  Spalding,  1  Roofs  Rep.  86. 

It  was  granted  in  the  case  of  a  libel  in  the  admiralty  of  a  vessel,  where  the  ac- 
quittal was  produced  by  fraud  and  imposition.  Pruden  v.  JVorlhrop,  1  Roofs 
Rep.  93. 

It  is  a  good  cause  of  arrest  that  one  of  the  jurors  were  interested  in  the  same  ques- 
tion.  Talmadge  v.  JSi'orthrop,  1  Roofs  Rep.  454. 

Where  gross  injustice  has  been  done,  a  new  trial  will  be  granted  to  the  plaintiff 
in  a  qui  tarn  action.  Hilliardv.  JVickols,  2  Roofs  Rep.  176, 

Where  there  was  contradictory  evidence,  v/hether  a  sale  of  a  chattel  was  absolute 
or  not,  the  Court  refused  to  set  aside  a  verdict.  De  Fonclear  v.  Shottenkirk,  3 
Johns.  Rep.  170. 

In  penal  actions,  and  in  those  for  libel  and  defamation,  and  others  vindictive  in  4 
their  nature,  a  new  trial  will  not  be  granted,  because  a  verdict  for  the  defendant 
was  against  the  weight  of  evidence,  unless  somi-  rule  of  law  has  been  violated,  or 
there  has  been  tampering  with  the  jury.  Jarvin  v.  Hathexoay ,  3  Johns.  Rep.  180. 
Ifurtin  V.  Hopkins,  9  Bo.  36.  Et  vide  Felter  v.  Whipple,  8  Bo.  369.  Steely.  Roach* 
1  Bay's  Rep.  63. 

In  actions  for  slander,  libels,  and  other  personal  torts,  a  new  trial  will  not  be 
granted  on  the  ground  of  excessive  damages,  unless  ihey  are  so  flagrantly  outrage- 
ous and  unjust,  as  manifestly  to  shew  that  the  jury  must  have  been  actuated  by  pre- 
ptdice,  partiality,  passion,  or  corruption.  Coleman  v.  Southtvick,  9  Johns.  Rep.  45. 
Sonthivick  v.  Stevens,  10  Bo.  443.  JYeal  v.  Lewis,  2  Bay's  Rep.  204.  Chancellor 
v.  Vaughn,  ibid.  416.  Mathexui,  v.  West,  2  JVott  &  M' Cord's  Rep.  415.  Ogden 
v.  Gibbons,  2  South.  Rep.  518.  Taylor  v.  Giger,  Hardin's  Rep.  586. 

Nor  in  crim.  con.  Torre  v.  Summer,  2  JVott  &  .)/'  Cord's  Rep  267.  Beacon  v, 
.Wen,  I  South.  Rep.  338.  Shoemaker  v.  Livezly,  2  Browne's  Rep.  286. 

The  damages  on  a  quantum  meruit,  or  valebant,  must  bo  tlagrantly  excessive  to 
j:iduce  the  Court  to  grant  a  new  trial.  Long  v.  Perry,  Hardin's  Rep.  3J7. 


2Qg  WITNESSES. 

Ch  III.  s.  6.  for  the  express  purpose  of  rendering  liim  competent,  it  should 

Exan.ii  aton.  ^^  produced,  and  the  subscribing  witness  called  to  prove  it.(o) 

'~'~~"~""~       When  a  witness  is  not  liable  to  any  legal  objection,  he  is  first 

examined  by  the  counsel  for  the  party  on  whose  behalf  he  comes 

to  give   evidence,  as   to   his  knowledge   of  the    fact  he  is  to 

prove.(/))     This  examination,  in  cases  of  any  intricacy,  is  a  duty 

The  importance  and  novelty  of  the  case,  are  sufficient  reasons  for  granting  a  new 
trial.  Abbot  v.  Sebor,  3  Jo/ms.  Cas.  39. 

A  verdict  being  recovered  on  a  note  given  for  money  won  at  cards,  a  new  trial 
■was  granted.  Tidmore  et  al.  v.  Boyce  et  al.  2  Rep.  Cojist.  Ct.  S.  Car.  I'M. 

A  new  trial  was  granted  when  the  plaintiff  was  surprised  at  the  trial,  by  an  allega- 
tion of  a  payment,  sworn  to  by  two  witnesses,  whom  there  was  reason  to  suspect  of 
perjury.  Peterson  \.  Barry,  it  Binn.  Rep.  481.  Yx  \\'\q  Arnngton  y .  Coleman, 
2  Huyw.  Rep.  300. 

If  the  plaintiff  examine  his  witness  and  deliver  him  over  to  the  defendant  to  cross- 
examine,  and  before  any  opportunity  offer  to  enable  the  plaintiff  to  ask  him  any 
question  in  explanation,  the  witness  fell  down  in  a  fit,  and  the  plaintiff  went  on  to 
examine  other  witnesses  and  try  the  cause,  the  Court  will  not  afterwards  grant  a 
new  trial,  to  give  the  plaintiff  an  opportunity  of  letting  in  firlher  testimony  of  the 
same  witness.  Depeyster  v.  The  Col.  Ins.  Co. '2  Caines'  Rep.  85. 

It  must  be  a  very  extraordinary  case  to  induce  the  Court  to  grant  a  new  trial,  after 
two  concurri7ig  verdicts  on  matters  of  fact.  BurkuH  v.  Bucher,  2  Bi?m.  Rep.  467. 
A'eife  V.  Arthurs,  3  Bo.  26.  Peay  v.  Brings,  2  J\/'ott  &  M' Cord's  Rep.  184. 

After  three  verdicts  a  Court  of  Chancery  vi'ill  decree  in  accordance  with  the  opi- 
nions of  the  juries.  Siannurdv.  Graves  et  al.  exrs.  2  Call's  Rep.  S69.  Et  vide 
M'Rea  v.  Wood,  1  Hen.  &  Mimf.  Rep.  548. 

10.  In  criminal  cases. 

A  new  trial  may  be  awarded  by  the  Oyer  and  Terminer.  The  People  v.  Town- 
send,  1  Jo/ms.  Cas.  104. 

But  not  by  the  Sessions,  except  for  irregularity.  Ibidv.  The  Justices  of  Chenango, 
1  Johns.  Cas.  1*9. 

Where  a  juror  has  been  withdrawn  by  the  order  of  the  Court,  the  defendant  is 
not  to  be  discharged,  but  is  to  be  tried  anew.  The  People  v.  Denton,  2  Johns.  Cas. 
275,  Ibid.  V.  Olcolt,  ibid.  301. 

Where  justice  has  been  done  by  a  verdict,  there  ought  to  be  no  new  trial,  even  in 
a  criminal  case,  altho'igh  there  may  have  been  a  misdirection  of  the  Judge  in  an  un- 
important particular.   T/ie  State  v.  Wells,  I  Coxe's  Rep.  424. 

A  new  trial  will  be  granted  in  a  criminal  case,  where  one  of* the  jurors  had  ex- 
pressed an  opinion  helore  the  trial,  unfavourable  to  the  prisoner.  Tlie  U.  States  v. 
Fries,  3  Ball.  Rep.  515.   The  Stale  v.  Hopkins,  I  Bay's  Rep.  373. 

What  evid'nce  is  admissible  on  a  motion  lor  a  new  trial,  vide  ante,  p.  257,  n  (i) 

Where  a  grand  juror,  who  finds  an  indictment  at  one  Court,  is  drawn  to  serve  as 
a  juror  at  another,  and  the  defendant  does  not  challenge  or  except  to  him  before  he 
is  sworn,  it  is  too  late  to  move  for  a  new  trial  on  that  account  after  a  trial  and  con- 
viction. The  Slate  v.  O'Driscotl,  2  Bay's  Rep.  153.— Am.  Ed. 

(o)  An  objection  to  ihe  competency  of  a  witness,  is  made  in  sufficient  time,  if 
made  during  the  trUd,  \i  \\:  sh>'ul(l  eventually  appear  to  be  interested.  Bank  of 
J\'oyth  America  v.  Wickoff,  2  Yeates'  Rep.  39    S.  C.  A  Ball.  Rep.  ISl.— Am.  Ed. 

(/))  Where  the  testimony  of  a  S'^i'ede,  wholly  ignorant  of  the  English  language, 
was  wanted  by  a  gratid jury,  the  Court  ordered   an  interpreter  to  be  first  sworn, 


WITNESSES.  ^     . 

of  no  small  importance  in  the  counsel;  for,  as  on  thv.  facts,  Mr.  c!i.  III.  s.  o. 
the  law  will  not  permit  him  to  put  what  are  called  leadln^Kg  did  Examination, 

tions,  viz.  to  form  them   in  such  a  way  as  would  instruct  ii*_ — 

witness  in  the  answers  he  is  to  give  ;  so  on  the  other,  he  should 
be  careful  that  he  makes  himself  sufficiently  understood  by  the 
witness,  who  may  otherwise  omit  some  material  circumstance 
of  the  case.  Of  late  years,  the  rule  as  to  leading  questions  has 
been  somewhat  relaxed  in  the  case  of  an  original  examination  ; 
and  where  it  evidently  appeared  that  a  witness  was  hostile  to 
the  party  by  whom  he  was  called,  and  unwilling  to  answer  ques- 
tions put  to  him,  the  examination  in  chief  has  been  permitted  to 
assume  the  appearance  of  a  cross-examination,  and  leading 
questions  to  be  put  to  a  witness.  It  is  impossible  to  point  out 
the  cases  in  which  the  general  rule  of  law  shall  be  so  departed 
from  ;  and  therefore  it  must  be  left  wholly  to  the  discretion  of 
the  Judge,  who,  in  general  is  guided  by  the  demeanour  of  the 
witness,  and  the  situation  he  stands  in  with  relation  to  the  par- 
ties. 

The  counsel  retained  on  the  other  side,  next  cross-examines 
the  witness  •,{q)  and  the  witness  not  being  supposed  so  friendly 
to  his  client  as  to  the  party  by  whom  he  is  called,  he  is  not  re- 
strained to  any  particular  mode  of  examination,  but  may  put 
what  questions  he  pleases.  He  may,  for  the  purpose  of  trying 
the  credit  of  the  witness,  suppose  facts  apparently  connected 
with  the  cause,  which  have  no  existence  but  in  his  own  imagina- 
tion, and  ask  the  witness  if  they  did  not  happen.  No  mischief 
can  arise  from  this  course  of  examination  ;  for,  if  the  witness  is 
determined  to  speak  nothing  but  the  truth,  he  will  deny  every 
thing  so  suggested,  and  the  testimony  of  every  other  who  is  call- 
ed will  confirm  him.  But  it  frequently  happens,  on  the  other 
hand,  that  witnesses  who  have  entered  into  a  wicked  conspiracy 

truly  to  interpret  between  the  Court  and  jury  and  the  witness.  The  oath  was  then 
administeied  to  the  witness  in  English,  and  iiiter[)t(;ted  to  him  by  the  sworn  inter- 
{ireier,  as  it  was  pronounced  by  the  clerk.  JVorieg-'s  Case,  4  Mass.  Rep.  81.  Ar- 
mory\.  Felloxves,  5  Do.  219. 

Under  a  commission  tor  the  examination  of  French  witnesses,  who  could  not  speak 
English,  the  depositions  are  not  to  be  taken  in  French,  but  must  be  turned  by  the 
interpreter  into  English,  and  be  so  taken  down  and  returned.  Lord  Viscount  Bel- 
•nore  v.  Anderson,  2  Coxe's  CA.  Cas.  288. — Am.  Ed. 

(7)  The  defendant  on  a  trial  for  perjury  was  held  entitled  to  cross-examine  a 
witness,  though  called  only  to  produce  a  document,  and  not  asked  any  questions  on 
(he  part  of  the  prosecution.  Hex  v.  Brooke,  2  Starhie's  Rep.  472. 

No  testimony  can  be  admitted  on  a  cross-examination,  but  wbat  wouM  have  been 
legal  on  a  direct  e.xaminiition.  Jackson  ex.  d.  Van  Slyck  v.  Son,  Col.  &  Caines^ 
/C'ns,  383.— Am,  Ed. 


^yO  WITNESSES. 

Ch.  III.  s.  6.  ^0  defeat  justice,  and  who,  havins  made  up  their  story  together, 

Examination.  ■*    ^,  ,   .  ®    ,  •,,        ,  •        i 

agree  upon  the  general  features  ot  the  case,  will,  when  examined 
out  of  the  hearing  of  each  other,*  by  their  variations  in  little 
circumstances,  as  to  which  they  are  unprepared,  betray  the  vil- 
lainy of  their  attempt ;  and  by  their  contradictions  be  rendered 
utterly  unworthy  of  credit.  A  cross-examination  to  this  extent 
has  never  been  objected  to ;  but  how  far  a  counsel  may,  on  cross- 
examination,  inquire  into  matters  foreign  to  the  cause,  for  the 
purpose  of  affecting  the  character  and  credit  of  the  witness, 
has,  as  I  have  before  observed,  been  the  subject  of  much  diffe- 
rence of  opinion,  and  appears  to  be  even  at  present  not  very 
well  settled.(r) 

It  must  frequently  occur,  that  in  the  cross-examination  of  a 
witness  as  to  the  representations  by  him  contrary  to  what  he 
deposed  in  chief,  the  counsel  will  have  occasion  to  refer  to  let- 
ters or  other  written  papers  of  the  witness  himself;  and  objec- 
tions have  frequently  arisen  at  Nisi  Prius  as  to  the  mode  in 
which  such  contradictions  shall  be  put  to  the  witness,  or  given 
in  evidence  against  him.  In  the  proceedings  on  the  Bill  of 
Pains  and  Penalties  against  the  Queen,  {Friday,  Sept.  1st.  1820,) 
this  question  was  more  formally  discussed  and  decided  than  on 
any  former  occasion  ;  and  as  such  decision  must  be  considered 
as  a  rule  for  all  future  cases,  it  will  not  be  out  of  place  to  state 
the  case  fully  here.(s) 

*  It  itppears  that  the  present  practice  of  ordering  witnesses  out  of  Court  daring 
the  progress  of  a  c>use,  so  as  to  prevent  them  from  hearing  the  testimony  of  others, 
is  very  ancient.  Fovtescue  de  Laudibtts,  c.  26,  says.  "  Et  si  necessitas  exegerit,  di- 
vidantur  testes  hujusmodi,  donee  ipsi  deposuerint  quicquid  velint,  ita  quod  dictum 
unius  non  doccbit  aut  concitabit  eorum  aiium  ad  consimihter  testificandum."  See 
also  Williams  \.  Hnlie,  1  Sid.  131. 

(r)When'a  party  cross-examines  a  witness,  he  thereby  makes  him  his  own,  and 
cannot  introduce  through  him  any  proof  which  would  not  have  been  legal  had  he 
originally  produced  him,  as /laro/ proof  of  a  writing  without  notice  having  been  given 
to  produce  it.  Jackson  ex.  d.  Van  Slyck  et  at.  v.  Son,  2  Caines'  Rep.  178. 

The  English  Courts  consider  a  witness  called  by  the  plaintiff  as  his  witness,  even 
after  a  cross  examination  is  finished,  and  when  he  is  called  back  by  the  defendant. 
Dickinson  v.  S/tee,  4  Esp.  Rep.  67. 

Where  the  teller,  or  clerk  of  a  bank,  is  called  as  a  witness  for  the  party,  to  prove 
the  correctness  of  his  entry,  he  may  be  asked  on  his  cross-examination,  whether  he 
was  not  in  the  habit  of  making  mistakes,  as  such  teller.  Mechanics  &  Farmers 
Bank  of  Albany  v.  Smith,  19  Johns.  Rep.  115. 

A  witness  cannot  be  asked  a  collateral  question,  not  relevant  to  the  matter  in  is- 
sue barely  to  test  his  credibility.   Odiorne  v.  Winkley,'iGaUis.  Rep.Si. — Am.  Ed. 

(s)  The  evidence  stated  in  a  case,  made  on  a  former  trial,  cannot  be  admitted  to 
impeach  the  testimony  of  the  same  witness,  given  on  a  second  trial  of  the  same 
cause.  J\''eilsonet  al.  v.  Columb.  his.  Co.  1  Johns.  Rep.  301. 

The  letters  of  a  witness  or  an  endorsement  made  by  him  on  a  note,  may  be  pro- 
duced to  contradict  his  testimony.  Bakery.  Arnold, 3  Caines'  Rep.  279. — Am.  Ep. 


WITNESSES,  2yi 

Louisa  Dumont  having  been  examined  as  to  certain  facts,  Mr.  cii.  ni.  s.  6, 
JVilliajns,  in  his  cross-examination,  asked  her  whether  she  did  Examination, 
not  use  certain  expressions  which  he  read  from  a  supposed  let- 
ter from  the  witness  to  her  sister;  on  which  the  Attorney-Ge- 
neral objected,  that  as  the  questions  were  drawn  from  a  written 
source,  the  letter  ought  to  be  put  in  before  making  use  of  its 
contents ;  and  the  point  having  been  argued  at  length  by  the 
counsel,  the  Lord  Chancellor  moved  that  a  question  should  be 
proposed  to  the  Judges  for  their  opinion,  "  whether  in  the  Courts 
below  a  party,  on  cross-examination,  would  be  allowed  to  re- 
present in  the  statement  of  a  question  the  contents  of  a  letter, 
and  to  ask  the  witness  whether  the  witness  wrote  a  letter  to  any 
person  with  such  contents,  or  contents  to  the  like  effect,  with- 
out having  shewn  to  the  witness  the  letter,  and  having  asked 
him  if  he  wrote  such  letter  and  his  admitting  that  he  wrote  it?" 
and  after  some  debate,  that  question  was  proposed,  with  the 
following  addition,  "  and  whether,  when  a  letter  is  produced  in 
the  Courts  below,  the  Court  will  allow  a  witness  to  be  asked, 
upon  sinewing  the  witness  a  part  of,  or  only  one  or  more  lines  of 
such  letter,  and  not  the  whole,  whether  he  wrote  such  part,  or 
such  one  or  more  lines,  and  in  case  the  witness  shall  not  admit 
that  he  did  write  the  same,  the  witness  can  be  examined  as  to 
the  contents  of  such  letter  ?"  The  Judges  having  retired  for  a 
short  time,  Returned  to  the  house,  and  the  Lord  Ohief  Justice  of 
the  King's  Bench  answered,  that  to  the  first  question  on  which 
they  were  called  on  to  speak,  they  answered  in  the  negative ; 
and  stated,  that  the  grounds  on  which  they  had  so  decided 
were,  that  according  to  the  established  rules  of  evidence,  the 
contents  of  every  written  paper  must  be  proved  by  the  paper 
itself;  therefore  the  witness  must  first  be  asked,  whether  the 
paper  be  in  his  handwriting  ?  and  then  the  paper  would,  if  the 
witness  admitted  it,  be  put  in  to  be  read  as  evidence  by  the 
cross-examining  counsel  in  his  proper  season,  and  the  Court 
would  be  in  possession  of  the  whole. 

The  next  question,  (viz.)  "  whether  the  counsel  would  be  al- 
lowed to  ask  a  witness  whether  a  part  or  the  whole,  or  one  or 
more  lines,  were  in  the  witness's  hand-writing,  and  whether, 
if  the  witness  denied  the  hand  writing,  the  counsel  could  pro- 
ceed to  cross-examine  him  as  to  the  contents  of  the  letter 
without  shewing  the  whole  ?"  The  Chief  Justice  said,  that  the 
Judges  had  divided  into  two  parts,  and  given  a  distinct  answer 
to  each  of  its  parts.  To  the  first  part,  whether  counsel  would 
be  allowed  to  shew  any  part  of  a  letter,  or  one  or  more  lines. 


:372  UITNESSES. 

Ch.  Ill,  s.  6.  and  to  ask  the  witness  whether  that  were  the  witness's  hand- 
Exammation.  •^yrlting,  they  had  given  their  opinion  in  the  affiimative;  but  to  the 
'~'~~———  latter  part  of  the  question,  viz.  whether,  if  the  witness  denied 
such  part  or  parts  to  be  his  hand  writing,  counsel  might  proceed 
to  examine  the  witness  as  to  the  contents  of  the  letter  without 
shewing  him  the  whole,  they  were  of  opinion  that  he  could  not, 
because,  as  he  had  before  stated,  to  prove  the  contents  of  a  pa- 
per, the  paper  itself  must  be  produced. 

After  some  observations,  the  Lord  Chancellor  informed  the 
counsel,  that  their  Lordships  had  decided  that  they  could  not 
be  allowed,  on  merely  stating  the  contents  of  a  letter,  to  ask 
the  witness  whether  she  had  ever  written  or  sent  such  a  letter; 
and  further,  that  they  would  be  allowed  to  shew  the  witness  any 
part  or  parts  of  a  letter,  and  to  ask  if  such  parts  were  in  the 
*  witness's  handwriting,  but  they  could  not  be  allowed  to  examine 

the  witness  upon  the  contents  of  such  letter  unless  the  whole 
were  shewn  to  the  witness  to  ascertain  the  hand-writing.  Upon 
this,  Mr.  Williams  shewed  the  witness  several  letters,  which 
she  admitted  to  be  of  her  hand  writing  ;  and  he  was  proceeding 
to  put  a  question  respecting  thr  contents  of  these  letters,  when 
the  Attorney  General  objected  to  such  questions,  unless  the 
letters  were  put  in.  This  point  was  argued  at  length  by  the 
respective  counsel,  after  which  the  Lord  Chancellor  proposed 
that  the  followingquestion  should  be  submitted  to  the  Judges,  viz. 
"  whether,  when  a  witness  is  cross-examined,  and  upon  the  pro- 
duction of  a  letter  to  the  witness  under  cross-examination,  the 
witness  admits  that  he  wrote  that  letter,  the  witness  would  be 
examined  in  the  Courts  below,  whether  he  did  or  did  not  in 
such  letter  make  statements  such  as  the  counsel  shall  by  ques- 
tions, addressed  to  the  witness,  suggest  are  or  are  not  made 
therein ;  or  whether  the  letter  itself  must  be  read  as  the  evi- 
dence to  manifest  that  such  statements  are  or  are  not  contain- 
ed therein,  and  in  what  stage  of  the  proceedings,  according  to 
the  practice  of  the  Courts  below,  the  letter  could  be  required  by 
the  counsel  to  be  read,  or  be  permitted  by  the  Courts  below  to 
be  read  .^" 

This  question  was  accordingly  submitted  to  the  Judges,  and 
in  about  ten  minutes  the  Lord  Chief  Justice  of  the  King's 
Bench  returned  the  answer  of  the  Judges  to  the  first  part  of  the 
question,  that  the  question  propounded  by  the  counsel  could 
not  be  a  question  addressed  to  the  witness  as  to  the  inquiry 
whether  or  no  certain  statements  are  contained  in  the  letter,  but 
that  the  letter  itself  must  be  read  to  manifest  that  such  state- 


WITNESSES.  g^-g 

nients  are  or  are  not  contained  in  the  letter.  His  Lordship  Ch.  III.  s.  6. 
said,  that  in  giving  that  opinion  the  Judges  did  not  consider  that '^^'''"'"""'■'*'""' 
they  were  presuming  to  offer  to  their  Lordships  any  new  rule  — — — 
of  evidence  now  for  the  first  time  given  by  them,  but  tiiat  they 
founded  tlieir  opinion  upon  what  was  a  rule  of  evidence  as  old 
as  any  part  of  the  common  law  of  England,  namely,  that  the 
contents  of  a  written  instrument,  if  in  existence,  must  be  proved 
by  the  instrument  itself,  and  not  by  parol  evidence.  In  answer 
to  the  latter  part  of  their  Lordships  question,  in  what  stage  of 
the  proceeding,  according  to  the  practice  of  the  Courts  below, 
such  letter  could  be  required  by  the  counsel  to  be  read,  or  be 
permitted  by  the  Courts  below  to  be  read,  the  Judges  were  of 
opinion,  according  to  the  ordinary  rule  of  proceeding  in  the 
Courts  below,  the  letters  were  to  be  read  as  the  evidence  of  the 
cross-examining  counsel,  as  pait  of  his  evidence,  in  his  turn,  af- 
ter he  should  have  opened  his  case ;  but  if  the  counsel  cross-ex- 
amining suggested  to  the  Court  that  he  wished  to  have  it  read 
immediately,  in  order  that  he  might,  after  the  contents  of  the 
letter  should  have  been  made  known  to  the  Court,  found  cer- 
tain questions  upon  it,  to  be  propounded  to  the  witness,  which 
could  not  well  or  effectually  be  done  without  first  reading  the 
letter  itself,  that  becomes  an  excepted  case  in  the  Courts  be- 
low, and  for  the  convenient  administration  of  justice,  the  letter 
is  permitted  to  be  read  at  the  suggestion  of  the  counsel,  but  con- 
sidering it,  however,  as  part  of  the  evidence  of  the  counsel  pro- 
posing it,  and  subject  to  all  the  consequences  of  considering  such 
letter  as  part  of  his  evidence. 

On  a  subsequent  day,  {Friday,  Sept.  5th,)  a  witness  of  the 
name  of  Sacchi  being  under  cross-examination,  was  asked  if  he 
ever  represented  to  any  person  that  "  he  taxed  himself  with  in- 
gratitude to  a  most  generous  mistress  ?''  (meaning  the  Queen) 
upon  which  the  Attorney-General  objected,  that  if  the  represen- 
tation were  made  by  the  witness  in  writing,  the  paper  ought  to 
be  put  in  before  the  question  was  put  to  the  witness;  but  if  it 
was  only  a  representation  made  by  the  witness  in  conversation, 
there  could  be  no  objection  to  the  Queen's  counsel  asking,  Did 
you  represent  so  and  so  in  conversation?  This  point  having 
been  argued, 

The  Lord  Chancellor  said,  that  the  opinion  given  by  the 
Judges  on  a  former  occasion,  was  not  exactly  a  decision  upon 
the  case  before  the  house.  That  was  a  decision  upon  a  case 
where  written  papers  were  produced.  Here  there  was  as  yet 
no  paper  produced.     If  the  witness  could  be  sure  that  the  pa- 

Nn 


274  WITNESSES. 

Ch.  m.  s.  6.  pers  about  which  he  was  asked  were  existing,  it  would  be  com 
Examination,  pg^g^j  f^^^  ^j^g  counsel  to  Call  for  their  production.  He  could 
not  say  that  it  was  so  in  a  case  where  there  might  be  a  know- 
ledge of  papers  which  had  existed,  but  for  aught  the  Court  knew., 
were  not  existing  at  the  time  of  the  inquiry.  He  proposed  that 
it  should  be  submitted  to  the  Judges,  for  their  opinion,  "  whe- 
ther or  not  a  witness  could  be  cross-examined  in  the  lower 
Courts  as  to  representations  of  a  particular  nature,  it  not  being 
specified  in  the  question  whether  it  referred  to  representations 
in  writing  or  in  words,  supposing  that  the  counsel  on  the  other 
side  objected  to  such  cross-examination  ?''  The  Judges  having 
retired  to  deliberate,  afterwards  returned  to  the  house,  and  the 
Lord  Chief  Justice  of  the  King's  Bench  delivered  their  opinion. 
He  said  it  was  not  in  the  recollection  of  any  of  the  Judges  that 
a  question  of  the  nature  proposed  by  the  counsel  had  ever  been 
put  in  the  Courts  below :  but  that  questions  of  a  similar  nature 
were  of  every-day  occurrence.  In  questions  referring  to  con- 
tracts and  agreements,  the  witness  was  frequently  asked  if  there 
was  any  agreement  for  the  sale  of  a  particular  article  :  on  which, 
it  was  the  ordinary  practice  for  the  counsel  to  put  an  intermediate 
question  to  the  witness,  and  ask  whether  the  agreement  was  in 
writing.  If  the  answer  of  the  witness  was  in  the  affirmative, 
then  the  agreement  in  writing  must  be  put  in  ;  if  in  the  nega- 
tive, the  counsel  might  proceed  to  question  the  witness  on  the 
nature  of  the  agreement.  Although,  therefore,  himself  and  his 
learned  brothers  could  not  speak  distinctly  in  the  affirmative  or 
the  negative  upon  the  question  proposed  to  them  by  their  Lord- 
ships, yet,  with  reference  to  the  principles  of  the  law  of  evidence, 
as  decided  by  practice  relative  to  contracts  and  agreements,  the 
other  Judges,  with  himself,  were  decidedly  of  opinion  that  the 
question  could  not  be  put  in  its  present  form  ?  but  it  might  be 
divided,  and  the  witness  might  be  first  asked  generally  if  he 
had  made  any  declarations  or  representations,  and  if  he  answer- 
ed in  the  affirmative,  he  might  be  asked  the  particulars  of  those 
representations,  the  counsel  on  the  other  side  being  permitted 
by  the  house  to  interpose  the  question  whether  the  declaration 
was  in  writing. 

The  Lord  Chancellor  said,  he  always  understood  the  rule  to 
be  as  given  by  the  Judges  ;  and,  on  the  counsel  being  called  in, 
informed  them,  that  the  house  had  decided,  the  counsel  cross- 
examining  must  first  ask  if  the  declaration  of  the  witness  was 
made  orally  or  in  writing,  and,  after  some  observations  from 
liords  Grey  and  Erskine,  added  that  he  thought  the  best  course, 


WITNESSES.  2^5 

would  be  for  the  counsel  for  her  Majesty  to  be  asked  if  he  ch,  iii.  s.  6. 
would  ask  the  witness  if  he  had  made  a  representation,  with  the '^''^"''"^''°"- 
understanding  that  the  counsel  for  the  bill  was  to  be  allowed  to  - 

ask  the  witness,  before  that  question  was  answered,  if  he  had 
made  the  representation  in  writing. 

Having  thus  noticed  the  course  of  examination  which  is  per 
mitted  for  the  purpose  of  afliecting  the  credit  of  a  witness  as  to 
declarations  or  representations  made  by  him  respecting  the  sub- 
ject of  the  cause,  it  will  be  proper  to  remind  the  reader  that 
such  examination  is  absolutely  necessary,  to  enable  the  partv 
against  whom  he  is  called  to  shew  the  fact  alleged  against  him  ; 
for  though  the  party  is  not  bound,  as  we  have  seen  in  other 
cases  not  connected  with  the  cause,  (ante,  269,)  to  take  the 
story  of  the  witness  exactly  as  he  chooses  to  give  it,  yet  he  is  not 
permitted  to  inquire  from  other  witnesses  as  to  the  fact  alleged 
without  first  examining  the  witness  to  it. 

Though  this  has  long  been  the  established  course  of  proceed- 
ing in  Westminster -Hall,  yet  it  was  questioned  in  the  House  of 
Lords,  on  the  bill  against  the  Queen,  {Friday,  Oct.  20th  ;)  and 
an  attempt  hauing  been  made  to  discredit  the  above  mentioned 
witness  (Sacchi)  by  shewing  that  he  had  attempted  to  suborn 
other  persons  to  give  false  testimony  against  the  Queen,  the 
following  questions  were  put  to  the  Judges,  viz.  "  1st.  Whether 
according  to  the  practice  and  usage  of  the  Courts  below,  and 
according  to  law,  when  a  witness  in  support  of  the  prosecution 
has  been  examined  in  chief,  and  has  not  been  asked  in  cross- 
examination  as  to  any  declarations  made  by  him,  or  acts  done 
by  him  to  procure  persons  corruptly  to  give  evidence  in  sup- 
port of  the  prosecution,  it  would  be  competent  to  the  party  ac- 
cused to  examine  the  witnesses  in  his  defence  to  prove  such  de- 
clarations or  acts  without  first  calling  back  such  witness  exa- 
mined in  chief  to  be  examined  or  cross-examined  as  to  the  fact 
whether  he  never  made  such  declarations,  or  did  such  acts  ?" 

"  2d.  Whether,  if  on  any  trial  in  any  Court  below  a  witness 
is  called  on  the  part  of  the  plaintiff  or  prosecutor,  and  gives 
evidence  against  the  defendant  in  such  cause,  and  if  after  the 
cross-examination  of  such  witness  by  the  defendant's  counsel, 
they  discover  that  the  witness  so  examined  has  corrupted  or 
endeavoured  to  corrupt  another  person  to  give  false  testimony 
in  such  cause,  the  counsel  for  such  defendant  may  not  be  per- 
mitted to  give  evidence  of  such  corrupt  act  of  such  witness  with- 
out calling  back  such  witness  ?" 

The  Chief  Justice,  in  answer  to  these  questions  observed 


gyg  WITNESSES. 

Ch.  III.  s.  6.  that  the  usual  practice  of  the  Courts  below,  and  a  practice  to 
Exumin  >tion.  ^,,].jj(,]^  ^[^py  ^yere  not  aware  of  any  exception,  was  this  :  If  it  be 
intended  to  bring  the  credit  of  any  witness  into  question  by 
proof  of  anv  thing  that  lie  may  have  said  or  declared  touching  the 
cause,  the  witness  is  first  asked,  upon  cross-examination,  whe- 
ther or  no  he  has  said  or  declared  that  which  is  intended  to  be 
proved.  If  the  witness  admits  the  words  or  declarations  im- 
puted to  him,  the  proof  on  the  other  side  becomes  unnecessary, 
and  the  witness  has  an  opportunity  of  giving  such  reason,  expla- 
nation or  exculpation  of  his  conduct,  if  any  there  be,  as  the  par- 
ticular circumstances  of  the  transaction  may  happen  to  furnish; 
and  thus  the  whole  matter  is  brought  before  the  Court  at  once, 
which  in  our  opinion  is  the  most  convenient  course.  If  the  wit- 
ness denies  the  words  or  declarations  imputed  to  him,  the  ad- 
verse party  has  an  opportunity  afterwards  of  contending  that 
the  matter  of  the  speech  or  declaration  is  such  that  he  is  not  to 
be  bound  by  the  answer  of  the  witness,  but  may  contradict  and 
falsify  it ;  and  if  it  he  found  to  be  such,  his  proof  in  contradic- 
tion will  be  received  at  the  proper  season.  If  the  witness  de- 
clines to  give  any  answer  to  the  question  proposed  to  him,  by 
reason  of  the  tendency  thereof  to  criminate  himself,  and  the 
Court  is  of  opinion  tliat  he  cannot  be  compelled  to  answer,  the 
adverse  party  has,  in  this  instance  also,  his  subsequent  opportu- 
nity of  tendering  his  proof  of  the  matter,  which  is  received,  if 
by  law  it  ought  to  be  received.  But  the  possibility  that  the 
witness  may  decline  to  answer  the  question,  affords  no  sufficient 
reason  for  not  giving  him  the  opportunity  of  answering  and  of 
offering  such  explanatory  or  exculpatory  matter  as  he  had  before 
alluded  to ;  &nd  it  was,  his  Lordship  added,  in  their  opinion,  of 
great  importance  that  that  opportunity  should  be  afforded,  not 
only  for  ttie  purpose  already  mentioned,  but  because,  if  not  givea 
in  the  first  instance,  it  might  be  whoUy  lost ;  for  a  witness  who 
had  been  examined,  and  had  no  reason  to  suppose  that  his  fur- 
ther attendance  was  requisite,  often  departed  the  Court,  and 
might  not  be  found  or  brought  back  until  the  trial  had  ended. 
So  that  if  evidence  of  this  sort  could  be  adduced  oQ  the  sudden, 
and  by  surprise,  without  any  previous  intimation  to  the  witness, 
or  the  party  producing  him,  great  injustice  might  be  done,  and, 
in  their  opinion,  not  unfrequently  would  be  done,  both  to  the 
witness  and  to  the  party  ;  and  this  not  only  in  the  case  of  a 
witness  called  by  a  plaintiff  or  prosecutor,  but  equally  so  in  the 
case  of  a  witness  called  by  a  defendant;  and  one  of  the  great 
objects  of  the  course  of  proceeding  established  by  their  Courts 


WITNESSES.  gyy 

was,  the  prevention  of  surprise,  as  far  as  was  practicable,  upon  ch.  iH.  s.  6. 
any  person  who  might  appear  therein."  ^"natio'ir.' 

"  The  questions  propounded  by  their  Lordships  comprised  not 

only  delarations  made  by  a  witness,  but  also,  in  the  language  of 
the  first  of  those  questions,  "acts  done  by  him  to  procure  per- 
sons corruptly  to  give  evidence  in  support  of  the  pr-osecution  ;" 
and,  in  the  language  of  the  latter  questions,  "  a  discovery  that 
the  witness  has  corrupted  or  endeavoured  to  corrupt  another 
person  to  give  false  testimony  in  such  cause  " 

"They  understood  the  acts  thus  mentioned  to  be  acts  occur- 
ring in  the  ordinary  mode  and  usual  course  wherein  such  trans- 
actions were  proved  in  common  experience  to  take  place  ;  be- 
cause, they  presumed,  if  the  questions  had  related  to  an  act 
done  in  an  extraordinary  and  unusual  manner,  their  attention 
would  have  been  directed  to  the  special  mode  and  circum- 
stances of  the  act  by  the  frame  and  language  of  the  questions- 
Now  such  acts  of  corruption  were  ordinarily  accomplished  by 
words  and  speeches,  an  offer  of  money  or  other  benefit  derives 
its  entire  character  from  the  purpose  for  which  it  was  made,  and 
this  purpose  was  notified  and  explained  by  words,  so  that  an  in- 
quiry into  the  act  of  corruption  would  usually  be,  both  in  form 
and  effect,  an  inquiry  into  the  words  spoken  by  the  supposed 
corruptor ;  and  words  spoken  for  such  a  purpose  did,  in  their 
opinion,  fall  within  the  same  rule  and  principle,  with  regard  to 
the  proceedings  in  their  Courts,  as  words  spoken  for  any  other 
purpose,  and  they  did  not  therefore  perceive  any  solid  distinc- 
tion with  regard  to  this  point,  between  the  declarations  and  the 
acts  mentioned  in  the  questions  proposed  to  them." 

When  a  witness  has  been  cross-examined   by  the  counsel  of  Re-examm^- 

•'  ,  tion, 

the  party  against  whom  he  has  been  called,  the  counsel  who  ori- 
ginally called  him  is  permitted  to  re-examine  him,  for  the  pur- 
pose,of  explaining  any  facts  so  brought  out  on  cross-examination  ; 
but  in  doing  this,  he  cannot  ask  leading  questions  more  than  on 
his  original  examination  ;  and  if,  on  cross-examination  as  to  a 
conversation  had  by  him  with  a  third  person,  respecting  his  be- 
ing a  witness  in  the  cause,  he  mentions  what  he  said  to  such 
third  person,  this  does  not  entitle  the  counsel  by  whom  he  is 
called  to  inquire  into  the  whole  conversation  between  him  and 
such  third  person,  so  as  to  let  in  the  assertion  of  such  third  per- 
son,* but  only  what  induced  the  witness  to  make  such  communi- 
cation (J,) 

•  By  eight  Judges,  Bkst  J.  fiissetit.  in  the  Queen's  Case,  Tuesday,  Sept. 
(0  A  parly  profliicing  a  witnc^ss  m;iy  he   allowed   to  correct  any  mistake  which 
;he  witness  may  have  made.  Uteinlnicky.  Col.  Ins.  Co.  2  Caiiies'  litp.  129, 


278  WITNESSES. 

Ch.  III.  ■;.  6.       The  party  examined  must,  as  was  before  observed,  depose  to 

witnesses' nfe- *^°^^  facts  only  of  which  he  has  an  immediate  knowledge  and 

mory.       recollection.     He  may  refresh  his  memory  with   a  copy  taken 

"~ by  himself  from  a  day-book,  and  if  he  can  then  speak  positively 

as  to  his  recollection,  it  is  sufficient;  but,  if  he  has  no  recollec- 
tion, further  than  finding  the  entry  in  his  book,  the  book  itself 
Tivior"ctted  "^"st  be  produced. (1)  Where  the  defendant  had  signed  acknow- 
3  T.  Kep.       ledgments  of  having  received  money,  in  a  day-book  of  the  plain- 
tiff, and  the  plaintiff's  clerk  afterwards    read  over  the  items  to 
him,  and  he  acknowledged  they  were  all  right,  it  was  held  that 
the  witness  might  refresh  his  memory  by  referring  to  the  book, 
(2)  Jacobs,    although  there  was  no  stamp  to  the  items  on   which  the  receipt 
E'lTt^le'r*       was  written  ;   for  this  was  only  proving  a  verbal  acknowledg- 
ment, and  not  a  written  receipt. (2)  (u) 
His  opinion         Though  witnesses  can  in  eeneral  speak  only  as  to  facts,  yet 

in  matters  of    .  5  -       .  *  .  •        .  .  •      .l  j    i- 

science.  1"  questions  oi  science,  persons  versed  in  the  subject,  may  deli- 

ver their  opinions  upon  oath,  on  the  case  proved  by  the  other 
witnesses.  Thus  a  physician  who  has  not  seen  a  particular  pa- 
tient, may,  after  hearing  the  evidence  of  others,  be  called  to 
prove  on  his  oath,  the  general  effects  of  the  disease  described  by 


It  seems  that  material  testimony  ought  not  to  be  rejected  merely  because  offered 
nfter  the  evidence  is  clost-d  on  both  sides,  unless  it  has  been  kept  back  by  trick,  and 
the  adverse  parly  would  be  deceived  or  injured  by  it.  Richardson  v.  Stewart,  4 
Binn.  Rep.  198. 

After  a  witness  has  been  examined  and  cross-examined,  the  Court  may,  at  their 
discretion,  permit  either  party  to  examine  him  again,  even  as  to  new  matter,  at  any 
time  durii  gth'-  trial.    Curren  v.  Conneiy,  5  Binii.  Rep.  489. 

"Where  by  an  accidental  omission,  plaintiff's  attnrnf  y  does  not  call  and  examine 
3  witness  who  was  present  in  Couit,  and  a  nonsuit  is  moved  for  after  he  has  rested 
his  case,  the  Court  will  permit  the  witness  to  be  examined  in  furtherance  of  justice. 
Campbell  etal  v.  Inqraham,  \  Rep.  Const.  Ct.  S.  Car.  293. 

After  the  defendant  h:>s  closed  his  testimony,  the  plaintiff  will  not  be  permitted 
to  give  additional  evidence  on  a  subject  on  which  he  had  previously  examined  wit- 
nesses, if  nothing  new  in  relation  to  n  his  been  proved  by  the  defendant.  Gilpin'! 
V.  Conseqiia,  1  Peters'  Rep.  85.— Am.  En. 

[u)  Sleinback  v.  Col.  Ins.  Co.  2  Cainefi'  Rep.  129. 

Where  a  person  who  is  a  witness  to  a  particular  transaction,  has  made  a  memo- 
randum at  the  time  of  certain  facts,  for  thf  purpose  of  perpetuating  the  memory  of 
theni,  and  c;m  at  any  suliseqnent  period  swear  that  he  had  made  the  entry  at  that 
time  for  that  purpose,  and  that  lie  knows  from  that  memorandum  tliat  the  facts  did 
exist,  it  will  he  good  evidr  nee,  all  hough  the  witness  docs  not  retain  a  distinct  recol- 
lection of  the  facts  themselves.  State  v.  Raivls,  2  JVotl  SJ  M'  Cord's  Rep.  333. 

So  where  on  an  indictment  for  g:<miiig,  ilie  prosecutor  was  unable  to  testify  to 
particular  facts,  except  from  set  injj;  ih-minan  t.ffidavit  made  by  himself,  at  the  time 
he  had  seen  the  offciice  corauiitted,  the  evidence  was  held  admissible,  ibid. — Am, 
En, 


•f 


WITNESSES.  gyg 

them,  and  its  probable  consequences  in  the  particular  case.     So  Ch.  ill  s.  G. 
a  ship-builder  has  been  permitted  to  give  his  opinion  on  the  sea-  "  n^X^Tot 
worthiness  of  a  ship  from  a  survey  taken  by  others  ;(1)  an  en   science, 
gineer  to  prove,  from  his  own  experiments,  the  usual  effects  of  — ^-— — . 
natural  causes  on  a  particular  harbour;  seal  engiavers,  to  she\v(^')jj'^'''°J'"'on 
that  an  impression  was  from  a  forged  seal  ;(2)  and,  persons  ac- Exch.  Aasnr. 
customed  to  inspect  hand-writings,  to  prove  that  a  particular  [^''t^5^-,j^j 
document  appeared  to  be  an  imitation,  and  not  a  genuine  hand  a  nir.  An- 
writing  ;(3)  for  though  the  evidence  so  given  does  not  distinctly  1^3       ' 
prove  the  fact,  it  is  still  general  information,  which  the  rest  of  (o^  jpoikesr.. 
mankind  stand  in  need  of,  to  enable  them  to  form  an  accurate J^''"'*' '="^'1/^ 

.  1 .  Kt'p.  498. 

judgment  on  the  subject  in  dispute.  r3"iAnte  isr 


SECTION  VII. 

Of  procuring  the  attendance  of  witnesses,  and  their  privilege  from 

arrest. 

To  enable  a  man  to    produce  his  witnesses  before  a  jury  in  Ch.  III.  s.7. 
cases  where  they  will  not  voluntarily  appear  on  his  behalf,  the  their  at'temi- 
law  has   provided   a  compulsory   remedy  by  the  writ  of  sub-       ance. 
poena.(x)     The  names  of  four  witnesses  may  be  put  in  this  writ,  ■ 
and  if  the  person  whose  testimony  is  required  be  in  possession 
of  any  deed  or  writing,  the  production  of  which  is  necessary  for 
the  party,  a  special  clause  may  be  inserted  in  the  writ  command- 
ing him  to  bring  it  with  him  (whence  the  writ  is  denominated 
a  subpoena  duces  tecum,)  or  a  notice  to   produce  the  instrument 
'may  be  given  to  the  witness  at  the  time  of  serving  the  subpoena. 
Under  this  writ,  however,  the  party  cannot  compel  a  third  per- (i)  Miles  w. 
son  to  produce  any  paper  which   constitutes  a  part  of  his  title, '?''^^*?"' ^ 
or,  as  was  said  in  one  case(l)  before  the  stat.  46  Geo.  3,  which  SeJi  vide  ante! 

• \ I'lO,  sect.  4. 

(x)  Where  a  witness  refuses  to  obey  a  subpoena,  which  has  been  regularly  served 
upon  him,  the  Court  will  grant  an  attachment  against  him  in  the  first  insiance.  ,9u- 
drev)s  v.  Andrews,  2  Johns.  Cas.  109.  Et  vide  United  States  v.  Caldwell,  2  Dall. 
Rep.  334. 

But  a  witness  may  by  his  own  act  dispense  with  the  legal  form  of  servint;  a  sicb- 
pana,  and  may  under  such  service  be  subjected  to  an  attachment.  Feiee  v.  Strome 
etal.  1  Yeutes'  Hep.  SO'.i. 

Witnesses  are  bound  to  appear  and  give  evidence  of  circumstances  in  extenuation 
of  a  sentence  as  well  as  before  a  jury.  The  State  v.  Smith,  2  Bay's  Reb.  62. — 
\m.Ed. 


280  WITNESSES. 

Ch.  111.  s.  7.  wouUI  expose  him  lo  an  action  ;  but  the  Court,  and  not  the  wit- 

Punishinent  ^ess,  is   to  determine  what  papers  he   is  compellable  to  pro- 

tentlihg.     duce.(l)('3/)     The  service  of  the  writ  o(  subpoenah  made  by  de- 

liveriiig  a"  copy  to  the  witness,  and  shev/ing  him  the  original,  at 

(1)  Amey*.    the  Same  time  tendering  a  reasonable  sum  of  money  for  his  ex- 
473.*  '  penses  according  to  his  station  in  life ;  and  if,  after  this,  he  ne- 

glect to  attend,  he  will  be  liable  either  to  an  attachment,  to  an 
action  at  the  common  law  for  damages,  or  to  an  action  on  the 
Statute  of  5  Eliz.  c.  9,  for  the  penalty  of  ten  pounds,  and  the 
further  recompense  given  by  that  Statute,  at  the  election  of  the 
.,,■.„    ,         party  injured  by  his  negligence  :(2)  but,  by  the   express  provi- 
lies,  Dougl.     sion  of  the  Statute,  thus  further  recompense  is  left  to  the  dis- 
'^  cretion  of  the  Judge  of  the  Court  out  of  which  the  process  is- 

sues, and  therefore  cannot  be  assessed  by  the  Judge  or  jury  at 
Nisi  Prius.{z) 

In  one  case  Lord  Kenyon  ruled,  that  the  party  who  was 

plaintiff  in  the  original  cause  could  maintain  no  action  against 

Swafford  ^    ^'^^  witness  unless  he  suffered  the  cause  to  be  called  on  and  was 

Peak.  N.  p.   nonsuited  ;(3)  but  the  Court  of  King's  Bench  have  expressed  a 

'   '  doubt  of  the  propriety  of  this  decision.(4) 

Remunera-         Courts  of  Justice  take  care  of  the  interests  of  the  witness  at 
tion.  i^jg  same  time  that  they  are  attentive  to  those  of  the  suitor  ;  and 

(4)  Barrow  r;.  therefore,  unless  the  subpoena  ho.  served  a  reasonablf»  time  be- 
Humphrey  ^^^^  ^j^g  ^^^  ^^  trial,  SO  as  to  enable  a  witness  to  arrange  his 
affairs  ;(5)  and,  in  civil  cases,  unless  a  sufficient  sum  of  money 
be  tendered  to  the  witness,  to  enable  him  to  go  to,  stay  at,  and 
■I).  Stewart°i  retum  from,  the  place  of  trial,(6)  he  will  not  be  liable  topunish- 
Stia.510.  ment  for  neglecting  to  attend.  But  though  entitled  to  his  rea- 
(6)  Chapman  sonable  expenses,  yet,  except  in  the  case  of  medical  men  and 

V.  Pointon,  2 

Stra.  1150. _ 

(i/)  Vide  ante,  p.  138. 

(z)  An  attachment  will  not  lie  against  the  printer  oFa  newspaper  for  not  produc- 
ing papers,  containing  the  adveriisements  of  county  commissioners  under  a  subpoena 
duces  tecum.  Lfs.  of  Shippen  v.  Wells,  2  Veates'  Rep.  260. 

Quere,  Have  the  Common  Pleas  power  to  Issue  writs  of  attachment  into  another 
county.  Bovie7i  v.  Douglass,  2  Dalt.  Rep.  45. 

An  attachment  will  lie  at;aiiiBt  a  member  of  Congress  for  not  obeying  a  siibpcena 
if  he  is  not  attending  a  sessioo,  going  to,  or  returning4rom  Coiigr..-ss.  Respiiblica  v. 
2)uane,  4  Yeates^  Rep  347. 

Quere,  Whether  members  of  Congress  are  privileged  from  the  oldi^ations  of  a 
subpoena.   U-  States  v.  Cooper,  4  Dall.  Rep.  341. 

Where  the  party  is  present  in  Court,  there  is  no  occasion  to  make  a  rule  for  an 
attachment  absolute,  but  sentence  may  be  pronounced  by  the  Court  forthwith- 
Respublicay.  Oswald,  I  Dall.  Rep.  328.— Am.  Ed. 


WITNESSES.  gg£ 

even  if  the  party  promise(l)  such  compensation  on  serving  the  cu.  m.  s.  r. 
attornies,  to  whom  a  small  additional  remuneration  is  allowed,  R  m«neia- 

■         r      I  •     J  f    •  tion. 

he  is  not  entitled  to  any  compensation  tor  his  loss  ot  time  ;  and  _______^ 

subpoena,  such   promise  being  without  consideration,  will    not^^^  ]^j„,^  ^, 
support  an  action.     If,  having  omitted  to  insist  on  receiving  the  Adam,  5  m, 
necessary  money  at  the  time  the  ntbpcena  is  served,  the  witness  wiiiis  7'.* 
ask  for  it  when  called,  the  Judge  will    not  compel  him  to  be  I!'-'-'^''""!'.* 

®  '  .        Broil.  ccBiDg. 

sworn  till  fully  indemnified;  and  he  will  not,  by  so  refusing 515. 
to  give  evidence,  wave  the  right  which  he  before  had,  to  an  ac- 
tion against  the  person  who  caused  him  to  be  served  withasw6- 
poena,  but  may  still  maintain  such  action  in  case  the  party,  not(.>)yia]|ett,. 
choosing  to  pay  the  money  at  the  time  of  the  trial,  declines  to^^''»''s. '3 
examine  him. (2) 

When  a  witness  is  in  custody,  or  serving  on  board  a  ship,  and  Witness  in 
his  commanding  officer  will  not  let  him  attend,  a  habeas  corpus'^^^^^  ^' 
ad  testificandum  is  necessary ;  for  which  an  application  should 
be  made  to  a  Judge,  upon  affidavit,  sworn  by  the  party  applying, 
stating  that  he  is  a  material  witness,(3)  and  in  the  latter  case  (3)  Fortesc. 
that  he  is  willing  to  attend.(4)     Upon  this  application  the  Judge      ' 
will,  if  he  think  right,  grant  \\\sfiat  for  the  writ ;  but  where  it  ap-  (i)  Rex  v. 
pears  not  to  be  done  bona  fide,  but  with  a  view  of  removing  aQ[j|"'"™72. 
prisoner  in  execution,  the  Court  will  refuse  it.(5)     So  where 
the  defendant  is  in  custody  on  a  charge  of  high  treason,(6)  or  as  Btirbiscp^s 
a  prisoner  at  war,(7)  it  will  not  be  granted  without  the  consent  Bun-.  i440. 
of  the  Secretary  of  State.     When  this  writ  is  granted,  it  is  de-(6)Langsion 
livered  to  the  officer  in  whose  custody  the  witness  is,  who  brings*  Cotton,  K. 

B   Sittings 

him  up  on  being  paid  his  reasonable  charges.(a)     By  Statute  43  afier  Trin.  T. 
Geo.  3,  c.  ^40,  Judges  of  the  Courts  at  Westminster  are  empow-^^  Geo.  3. 
ered  to  grant  writs  of  habeas  corpus  to  bring  prisoners  before  (7)  Furley  v. 
Courts  martial,  or  commissioners  of  bankrupts,  to  give  evidence  ^'^^Jj'^^^g' 
in  cases  depending  before  them. 

The  person  of  a  party  or  witness,  attending  the  trial  of  a  5''""*^*^^'°° 
.         ~    -  *^       .  ...         .  1  -1  •  from  arrest, 

cause,  IS  sate  trom  arrest  m  any  civil  action  while  going  to,  stay- 
ing, and  returning  from  the  place  of  trial ;  and  if  arrested  dur- 
ing this  time,  the  Court  on  which  he  is  attending  will  discharge 
him  and  censure  the  officer.  This  privilege  has  been  extended 
even  to  a  party  attending  an  arbitrator  ;{8)  and  though  in  strict-  f8)  Spence  v. 
ness  it  does  not  authorise  a  man  to  loiter  or  deviate  from  thegg"'*'  '  ''^  ^ 
way,  yet  Courts  of  Justice  have  not  been  very  rigid  in  confin- 

(a)  The  Sheriff  is  bound  to  bring  up  a  j)erson  in  custody'  on  execution,  to  testify 
in  a  civil  case,  after  the  service  of  a  writ  oi  habeas  corpus  ad  testificandum,  and  on 
being  tendered  the  expenses  for  bringing  up  and  x-eturniiig  the  prisoner.  Jifoble  v. 
Smith,  5  Johns.  Rep.  357. — Am.  Ed. 

O  o 


28g  WITNESSES. 

Ch  III.  s.  7,  ing  the  protection  ;  therefore,  where  a  defendant,  who  was  ta- 
iVorn'ancl"    tending  his  canse  at  the  sittings,  which  was  put  oft' early  in  the 

day,  stayed  in  Court  till   five  in  the  afternoon,  and  then  went 

Liglitiooit;.  with  his  attorney  and  witnesses  to  dine  at  a  tavern,  and  was 
C;!meron,  arrested  there  while  at  dinner;  the  Court  held  that  taking  this 
refreshment  did  not  destroy  his  privilege,  and  he  was  discharged. 
Hatch  •».  So  where  a  witness  having  attended  the  assizes,  on  a  trial 
Biissi't,  Glib.  ^y|^j(.]^  ^ya^g  over  about  four  ir   the  afternoon,  staid  in  the  assize 

Cus  K.  B. 

508.  2Sira.    town  till  after  dinner  the  next  day,  and  then,  while  going  home 
cited  ^"  ^  coach,  was  arrested  about  -seven  in  the  evening,  the  Court 

ordered  her  discharge,  though  her    residence  was    not   above 

twenty  miles  from  the  place  of  trial. (i) 

(6)  If  any  person  whose  duly  brings  him  to  Court,  whether  as  a  juror,  a  party,  oi 
a  will]  ss,  bf-  an  esled  while  attending  Court,  or  eiindo  et  redeimdo ,  the  Court,  upon 
lanii  ,ti    will  dischai  ge  him.  Ex  parte  J\I'J\\iL,  3  Mass.  Hep.  288. 

A  wuness  who  attended  from  anothei'  Slate,  to  prove  a  will  iu  the  Supreme  Court, 
who  was  arrested  on  his  t<^turn  home,  by  process  from  the  Mayor's  Court  of  JVen 
York,  was  discharged  on  mqfion  by  the  Supreme  Coiirt.  J\''orris  v.  Beach,  2  Johns 
Hep.  294. 

A  party  to  an  action,  which  has  been  referred  to  tlie  decision  of  the  Court  upon  a 
case  stated,  is  pi  ivileg:'d  trom  antst,  while  attendkig,  going  to,  or  returning  from 
Court.  Ex  parte  M-JVeil,5  Mass.  Rep.  2i5. 

But  if  a  witness  attend  Court  voluntarily,  without  being  summoned,  he  will  not 
be  protected  from  arrest,  ibid.  264. 

In  the  Circuit  Court  it  has  been  held,  that  the  privilege  of  a  suitor  or  witness,  ex- 
tends only  to  exemption  fiom  arrest,  though  the  service  of  process,  whether  a  ca- 
pia.i  or  summons,  in  the  actual  or  constructive  presence  of  the  Court,  (as  on  the 
steps  at  the  Court-House)  would  be  a  contempt.  Blight  v.  Fisher  et  al.  1  Peters'' 
Rep.  41. 

The  privilege  of  a  suitor  does  not  extend  to  a  person  who  has  he&a  surrendered 
by  his  bail  in  another  cause,  and  is  in  actual  custody  at  the  time  of  arrest.  Davis  et 
al.  V.  Cunvnins,  3  Yeates''  Rep  387. 

A  writ  of  protection  ad  testificandum,  suspends  all  civil  process  against  the  sub- 
ject of  it,  while  coming  to,  and  attending  upon  Court,  with  a  reasonable  time  for  the 
witness  to  return  hame,  after  the  rising  of  the  Court.  Ex  parte  Ball,  1  Tyl.  Rep. 
274.  Et  vide  Smythe  v.  Banks,  4  Dull.  Rep.  329. 

The  privilege  of  a  suitor  does  not  hold  in  the  case  of  ^'M</«cia^  process.  Sterret-s 
Case,  1  Dall.  Rep.  3.55.  Hannumv.  Askew,  1  Yeates''  Rep. '25.  Sed  contra,  JSroonje 
V.  Hurst,  C.  C.  U.  States,  Oct.  Sess.  1804,  4  Dall.  Rep.  387,  cited  4  Yeates'  Rep. 
124. 

The  authority  of  Sterret''s  Case  has  been  often  doubted  both  at  the  bar,  and  oa 
the  bench,  though  never  expressly  overruled.  4  Dull.  Rep.  388,  ?i. 

Where  another  Court  has  refused  to  discharge  orite  of  its  own  suitors  from  arrest, 
on  the  ground  of  privilege,  the  Supreme  Court  will  not  relieve  on  habeas  corpus- 
The  Commonwealth  v.  Hambnght.  4  Serg.  ij  R.  Rep.  149. 

On  an  appeal  from  the  Court  of  Common  Pleas  of  Lancaster  county,  to  the  Su- 
preme Court  oi  Pennsylvania,  silting  in  Philadelphia,  a  witness  attending  thereon, 
was  held  to  be  privileged.  JMHes  v.  M'  Cullough,  1  Bin7i.  Rep.  77. 

The  privilege  that  a  witness  attending  a  Court  shoulil  be  exempted  from  arrest 
is  the  right  of  the  Court,  and  not  of  the  party  ;  therefore,  an  action  of  assault  and 


WITNESSES.  Qgo 

battery,  and  false  imprisonment  will  not  lie  for  such  an  arrest.  Moore  v.  Chapma7i,  rju    jij       -■ 
3  Hen.  &  Jtunf  Jiep.  200.  P^otec'tfon  ' 

Where  the  defendant  in  Loudon,  was  summoned  to  attend  an  arbitrator  at  Exe-  from  arrest. 
ter,  and  on  his  passage  went  to  Clifton,  whe  e  his  wife  then  resided,  for  the  alleged  — 
purpose  of  searching  for  papers  necessary  to  his  examination,  at  which  place  he 
staid  the  greater  part  of  two  days,  the  Court  held,  tliat  although  it  might  not  be  an 
unreasonable  deviation,  yet  that  his  slay  tht-re  being  an  unreasonable  length  of  time, 
and  it  not  being  sworn  that  he  was  occupied  during  all  the  time,  in  the  object  for 
which  he  went  thither,  he  was  not  protected  from  arrest.  Randall  v.  Gumey,  3 
Barn.  &  Md.  Rep.  25'i.— Am.  Ed. 


END  OF  PART  L 


(  284  ) 


COMPENDIUM,  &c. 


PART  II. 


CHAP.  I. 

or    EVIDENCE    IN    GENERAL,    AS    REGULATED    BY    THE    PLEADINGS, 
AND   OTHER  PROCEEDINGS  IN  A  CAUSE. 

Part  II.         To  ascertain  the  evidence  necessary  to  support  an  action,  the 
chcum-     fii'st  thing  to  be  attended  to  is  the  form  in  which  the  action  is 
stances,     brought,  and  the  statement  of  the  case  as  contained  in  the  de- 
•"■'  claration.     In  most  instances  the  particular  circumstances  of 

the  case  are  set  forth,  but  in  some  few  the  law  permits  the  use 
of  a  certain  prescribed  form,  wliollj  fictitious,  and  quite  con- 
trary to  the  facts  whereon  the  action  is  founded. 

In  the  first  class  of  actions,  the  plaintiff  is  bound  to  prove  the 
facts  stated  in  his  declaration ;  any  material  variance  between 
that  statement  and  the  evidence,  will  be  fatal  to  his  cause  ;  and 
though  in  fact  he  may  shew  a  good  cause  of  action,  yet  not  hav- 
ing truly  stated  it  on  the  record,  he  fails  on  account  of  the  va- 
riance. 

To  notice  in  this  place  the  numerous  cases  which  have  arisen, 
on  variances  between  the  pleadings  and  the  evidence,  would 
tend  to  confuse  rather  than  to  convey  any  intelligence  to  the 
reader.(a)     It  may  be  proper  to  observe  in  general,  that  when 


(a)  In  an  action  on  a  written  contract,  the  writing  may  be  read  to  the  jury,  if  it 
substantially  comports  with  the  narr.  Farniim  et  al.  v.  Barnum  et  al.  I  Tyl. 
Rep.  72. 

Though  ill  an  action  for  money  had  and  received,  a  contract  may  be  specially 
stated,  which  is  a  sine  qua  non  of  the  jilaiiitifF's  recovery  ;  yet  if  it  is  inducement 
only,  and  not  the  gist  of  the  action,  it  is  not  necessary  to  shew  the  happening  of  a 
condition,  which  it  would  be  inadmissible  to  shew  in  an  action  on  the  contract.  Tou- 
sey  V.  Preston,  1  Con.  Rep.  175. 


OP  PLEADINGS  IN  GENERAL 


385 


the  declaration  contains  impertinent  matter,  foreign  to  the  cause. 


VVhen  the  na^r.  stated  a  promise,  that  in  consideration  thatthe  plAmtiff  -would en- 
dorse a  note  signed  by  a  third  person,  the  defendant  would  hold  himself  liable 
thereon  in  the  same  manner,  and  though  he  had  signed  it  wiih  his  proper  name, 
and  the  evidence  was  ota  promise  in  consideration  of  the  plaintiffs  having'  endorsed 
such  note  ;  it  was  held  that  the  evidence  did  not  conduce  to  prove  the  narr,  JBxilk- 
ley  et  al.  v.  Lajidon  et  al.  2  Con.  Rep.  404. 

Where  the  narr.  in  an  action  on  a  note,  stated  that  the  defendants,  by  a  note  un- 
der their  hands,  promised  to  pay  ;  and  the  note  exhibited  in  evidence,  appeared  to 
have  been  signed  by  procuration  ;  it  was  held,  that  it  was  no  variance,  the  allega- 
tion being  according  to  the  operation  of  law.  Plielps  et  al.  v.  Riley,  3  Con.  Rep. 
265. 

In  an  indictment  on  the  7th  and  9th  Sect,  of  the  Act  of  Congress  of  29th  July, 
1813,  ch.  34,  concerning  cod-fisneries,  the  indictment  having  stated  the  purport  of 
the  written  paper  to  be  that  the  vessel  was  of  the  burthen  of  14  tons,  45-95ths  of  a 
ton,  whereas  the  paper  produced,  stated  it  to  be  14  tons,  50-95tbs  of  a  ton,  the  vari- 
ance was  held  fatal.    U.  States  v.  Lakanaii,  2  Jllason's  Rep.  2i9. 

Where  the  mirr.  is  for  a  contract  to  carry  salt  for  jgl.87.5  cents,  a  written  me- 
morandum of  an  agreement  to  carry  for  15  shillings  is  admissible,  and  may  be  ex- 
plained. Salter  v.  Kirkbride  et  al.  1  South.  Rep  223. 

So,  in  an  indictment  for  forging  a  deed,  a  variance  in  the  courses,  as  20  for  22,  is 
material.     State  v.  Street,  Tayl.  Rep.  128. 

Where  a  name  appears  to  be  a  foreign  one,  a  variance  of  a  letter  which,  accord- 
ing to  the  pronunciation  of  that  language,  does  not  vary  the  sound,  is  not  a  misnomer. 
Petrie  v.  JVoodtoorth,  3  Caines'  Rep.  219. 

The  nai'r.  in  ejectment  being  for  a  tract  of  land  called  Rupalta,  and  the  title  be- 
ing for  one  called  Repalta,  is  no  variance,  if  proved  to  be  the  same  land.  Mitchell 
etal.  les.  v.  Grover,  1  Har.  &  Johns.  Rep.  507. 

A  variance  in  the  name  of  a  corporation,  which  does  not  render  it  materially- dif- 
ferent in  substance,  from  the  true  name,  will  not  injure,  especially  in  proceedings 
in  which  the  corporation  are  not  a  party  to  the  record.  The  People  v.  Runkel,  9 
Johns.  Rep.  147. 

A  Variance  between  the  writ  and  narr.  is  cured  after  an  inquiry  of  damages  exe 
cuted.  Froxwell,  &c.  v,  Fugate,  Hardin's  Rep.  2. 

So  after  an  office  judgment.  Kennedy  v.  Terril,  ibid.  492. 

And  after  final  judgment.  Palmer,  &c.  v.  JH'Oinnia,  ibid.  505. 

A  variance  between  the  evidence  and  narr.  as  to  part  of  the  plaintiff's  demand, 
is  not  fatal.  Hanks  v.  Evens,  ibid,  45. 

If  one  of  two  executors  refer  a  matter  in  his  own  right,  and  one  in  right  of  his  tes> 
tator,  and  the  referees  award  a  sum  of  money  to  himself,  and  another  to  him  and  his 
co-executor,  the  award  is  good;  and  he  may  sue  upon  the  covenant  in  his  own  name^ 
and  there  will  be  no  variance.  Macon  v.  Crump,  1  Call's  Rep.  575. 

If  the  claim  of  the  plaintiff  in  an  attachment  against  an  absconding  debtor,  be  stated 
as  for  a  certain  sum  due  by  a  negotiable  note,  with  interest  from  the  day  when  such 
note  should  have  been  paid  ;  and  the  bond  for  prosecuting  the  attachment  describe 
it  as  sued  out  for  the  sum  of  money  mentioned  therein,  (saying  nothing  about  the  in- 
terest) the  variance  is  not  material.  Smith  v.  Pearce,  6  Mnnf.  Rep.  585. 

In  an  action  oi  scire  facias  against  bail,  the  defendant  pleaded  that  another  person 
of  the  same  name  and  description,  became  bail,  and  traversed,  tliat  he  was  (he  per- 
son named  in  the  bail  piece,  and  the  plea  was  held  good.  Rmoard\.  JYoble,  Q,  Johns. 
Cos.  9Q3. 

Things  written  may  be  described  by  their  tenor,  or  according  to  their  substance ; 
if  described  by  their  <e?jor,  their  very  words  must  be  followed;,  but  the  omission  of 


Ch.  r. 

Variance  in 
circum- 
stances. 


S86 


OF  PLEADINGS 


Part  II. 
Variance 
circum- 
stances. 


and  which  the  Master  on  a  reference  to  him  would  strike  out, 


a  letter,  not  altering  the  word,  is  not  fatal  ;  if  described  by  their  substance  or  effect, 
the  very  wurds  need  not  be  set  out ;  it  is  sufficient  if  their  sense  and  meaning  be  de- 
scribed. State  V.  Bradley.  1  Hayiv.  Rep.  463. 

It  is  not  sufficient  to  declare  upon  a  written  contract  according  to  its  legal  effect 
and  import,  and  not  in  its  precise  words.  Lent  v.  Padelford,  10  Mass.  Rep.  230. 
JVildman  v.  Glossop,  1  Barn.  &  Jld.  Rep.  9. 

In  a  suit  for  -words  spoken,  there  can  be  no  tenor,  therefore  where  the  sense  and 
meaning  of  the  words  set  out  in  the  indictment  is  the  same  with  those  proven,  and 
clearly  and  distinctly  so,  though  not  the  very  same  words,  such  evidence  will  sup- 
port the  indictment,  ibid. 

If  the  plaintiff  declares  in  an  action  for  a  libel  qux  sequitur  in  his  vei-bis  scilicet, 
the  minutest  variance  between  ilu-  libel  offered  in  evidence,  and  the  narr.  will  be 
fatal.  Harris  v.  Laurence  et  al.  1  Tyl.  Rep.  156. 

In  an  action  for  a  libel,  the  libellous  matter  set  forth  in  the  narr.  contained  the 
words  U-  States,  and  in  the  paper  produced  in  evidence  it  was  written  United 
States,  the  variance  is  immaterial.  Lewis  v.  Few,  5  Jolms.  Rep.  1.  Et  vide  South- 
id  ck  V.  Stevens,  10  Do.  443. 

The  Court  will  look  to  the  context  in  order  to  decide  whether  the  variance  is  ma- 
terial or  not.  ibid. 

A  variance  in  the  date  of  a  bond  or  sum,  is  fatal.  Gordon  et  al.  v.  Bro-mne''s  exr 
I  Hayw.  Rep.  215. 

Where  the  defendant  was  snmmonpd  as  the  executors  of..?,  and  the  ?iarr.  charg- 
ed him  accordingly,  and  he  pleaded  ne  nnques  executor,  and  the  plaintiff  withdrew 
his  Jifltr.  and  filed  another,  charging  him  as  executor  of  the  executor  of  A.  the 
variance  hetwetn  the  writ  and  the  count  was  held  to  be  immaterial.  Jennings  v. 
Cox,  1  Binn.  Rep.  588,  in  note.     Et  vide  Bellv.  Allen,  3  Munf.  R.-p.  118. 

Where  in  a  debt  on  a  bond,  a  capias  has  issued  against  two,  one  of  whom  has  been 
taken,  and  non  est  i?ivertt7ts  has  been  returned  as  tatheothir,  if  the  plaintiff  declares 
on  the  bond,  as  the  bond  of  the  defendant,  who  h:(s  been  taken,"  advantage  can  be 
taken  of  the  variance  only  by  demurrer,  and  it  is  not  error  after  verdict.  Dillman 
V.  Schultz,  5  Serg.  i^  It.  Rep.  35. 

Qiiere,  'Whether  in  any  stage-  of  an  action,  advantage  can  be  taken  of  a  variance 
between  the  lorit  and  the  uarr.  where  the  cause  of  action  appears  to  be  the  same 
ibid. 

The  rule  is,  that  a  trivi.il  variation,  in  setting  out  a  contract  or  written  instrument 
is  fatal:  but  the  application  of  the  rule  must  be  confined  to  such  cases,  where  ei- 
ther the  plaintiff  has  the  original  in  his  posst-ssion,  or  can,  by  due  exertions,  obtain 
it.  Dunbar  v.  Jurnper,  2  Yeates^  Rep.  74.  Et  vide  Umbehocker  v.  Russell,  2 
Teates'  Refj  339.  Musgrove  v.  Gibbs,  I  Dall.  Rep.  216.  Dillingham  v.  The  U. 
States,  C.  C.  Apnl,  1806,  M.  S.  Rep. 

In  an  action  for  an  escape,  the  plaintiff  stated  the  substance  of  an  execution  in  his 
narr.  without  setting  it  out  in  hxc  verba,  but  in  the  execution  produced  in  evidence 
there  was  a  variance  o^ one  cent  in  the  current  of  damage  and  costs;  it  was  held  im- 
material. Bissell  v.  Kip,  5  Johns.  Rep  89.  Brooks  v.  Bennis,  8  Do.  356.  Et  vide 
Pemberton,  &c.  v.  Scarce,  Hardin.  Rep.  3. 

In  an  action  of  debt  on  bond  with  a  collateral  condition,  if  the  breach  be  assigned 
in  the  very  words  of  the  condition,  it  is  sufficient.  Craighill  v.  Page,  2  Hen.  & 
Munf.  Rep.  446.  In  such  a  case,  after  judgment  by  default,  and  writ  of  inquiry 
executed,  no  advantage  can  be  taken  of  a  variance  between  the  nai~r.  and  bund, 
nor  is  the  bond  considered  as  part  of  the  record,  unless  it  be  spread  upon  it  by  oye>'^i 
demarrer^ to  evidence,  bill  of  exceptions,  Stc,    Craighill  v.  Page,  ibid. 


IN  GENERAL. 


287 


such  impertinent  matter  will  be  rejected  by  the  Court,  and  need       ch.  I 
not  be  proved.(6)     But  where  facts  themselves  unnecessary  and  ^^^ 


nance  iq 
ciixuin- 
stances. 


Wliere  the  naii\  lays  a  promise  by  tlie  defendant  to  pay  and  content  the  plaintiff 
"for  two  bonds  wliicli  tlie  i)lainuff  had  in  his   possession,  executed  by   a  tliifd  per-  o^'i'.'}^  v.   ,  ,^/ 
son  to  the  plainiiff,"  llie  bonds  must  be  produced  on  the  trial,  or  they  must  be  pi'ov- 
ed  to  be  lost  or  destroyed.     Bean  v.  M'Plierrin,  '2  Serg  &  R.  Rep.  69. 
Qiiere,  if  alter  vei'diet  tlie  Court  would  presume  they   were  produced,  ibid. 
Ill  assii^niiig  the  breach  of  the  condition  nf  a  bond,  the  variance  to  be  fatal,  must 
be  material.     Jlmvkin^s  exr.  v.  Berkley,  1   Wash.  Rep.  260.     Buster''s  exrs,  v, 
Wallace,  iB.  &  Munf.  Rep.  8-2. 

What  variances  between  a  judgment  and  the  recital  thereof,  in  a  scire  facias,  or 
in  the  judgment  thereon,  are  not  immaterial.  Lyoii's  exr.  v.  Gregory,  3  Hen.  ii 
Munf.  Rep.  237. 

Where  debt  is  brought  on  a  covenant  to  pay  a  sum  certain,  any  variance  of  the 
sura  in  the  deed  will  vitiate  it.  Bot  where  the  deed  relates  to  matter  of  fact  extrin- 
sic, there,  tiiough  the  plaintiff  declare  for  more  than  is  due,  he  may  enter  a  remit- 
titur for  the  balance.  U.  States  v.  Colt,  1  Peter''s  Rep.  153.  Et  \\de  H'a?nmelt  v. 
Bullitt's  exrs.  1  Call.  Rep.  568. 

In  an  action  on  a  promise  of  indemnity,  made  by  the  defendant,  against .-?.  the 
plaintiff  declared  that  Jl.  had  recovered  against  him  a  certain  sum .  Proof  of  a  reco- 
very of  a  different  sum  by  Jl.  is  not  a  fatal  variance,  because  the  recovery  is  stated 
only  by  way  of  inducement,  and  not  as  the  ground  of  the  suit.  Ripsher  v.  Shane, 
3  Yeates'  Rep.  575.     Et  vide  Livingston  v.  Sivan-Lvick,  2  Dall.  Rep.  300. 

Where  the  narr.  was  for  obstructing  the  waters  of  D-  Creek,  and  the  evidence 
was  of  obstructions  in  the  waters  of/,  near  the  mouth  of  Z)  Creek,  the  variance  was 
ruled  to  be  fatal     Funk  v.  Arnold,  3  Yeates'  Rep.i'iH. 

In  an  action  on  a  single  bill,  the  plaintiff  averred  in  the  statement,  that  the  bili 
was  assigned  by  himself /oAra  Adam  L.  executor  of  A.  to  B.  who  re-assigned  it  to 
the  plaintiff,  and  offered  in  evidence  a  bill,  agreeing  in  all  respects  witii  the  state- 
ment, except  that  the  assignment  was  by  Adam  L.  but  made  "  agreeably  to  the 
will  of  ^3.''  (it  being  granted  that  John  Adam  L-  vias  A''s  executor.)  Held,  that  the 
evidence  was  inadmissible  on  the  issue  of  non  est  factum,  Luutermilch  v.  Kneagy, 
3  Serg.  ^  R.  Rep.  202. 

Where  a  narr.  recited  that  E.  Brown  was  attached  to  answer,  &c.  and  then 
charged  the  defendant  as  Eliaha  Brown,  on  a  bill  of  exchange  drawn  by  him  in  fa- 
vour of  the  plaintiff,  a  bill  of  exchange  sigiu'd  E.  Broxun,  and  the  band  writing  of 
',  hich  was  proved  to  he  that  of  Elijah  Browne,  was  ruled  to  be  inadmissible.  Craig 
V,  Bro7vn,  1  Peter's  Rep.  139. 

Wht  re  the  plaintiff  declared  by  ilie  name  of  William  T.  Robinson,  and  gave  in 
evidence  a  deed  to  William  Robinson,  \\ier>mhs\on  of  the  middle  letter  was  held  an 
immaterial  variance,  for  the  law  knows  of  but  one  christian  name.  Franklin  v. 
Talmadge,  5  Johns.  Rep.  84. 

Wliirre  the  narr.  on  a  promissory  note,  alleging  a  demand  of  payment  in  general 
terms,  as  "although  requested,"  &c.  it  was  held  good,  especially  after  verdict. 
Leffingwellet  al.  v.  White,  1  Johns.  Cas.  99. 

Where  a  note  not  negotiable  was  declnred  upon  as  being/or  t>a/«e  received,  and 
•which  wDrds  were  not  in  the  note  produced  in  evidenci-,  it  was  held  that  they  were 
descriptive  of  tlie  note,  and  thai  therefore  the  variance  was  fatal  Saxton  et  al.  v. 
.Tohmon,\Q  Johns.  Rep.  ilS.  Et  vide  Thomson  v.  Jaineson,i  Cra?ich's  Rep.'2S2.— 
Am.  Ei>. 

(6)  Where  matter  is  alleged  in  a  narr.  which  might  have  been  struck  out,  ou 
•notion,  as  surplusage,  it  nei^U  not  be  proved  ut  the  trial.  Allaire  v.  Onlund,  2  Johns. 
Cas.  52. 


288  OF  PLEADINGS 

fart.  II.     immaterial,  but  at  the  same  time  not  wholly  impertinent,  are  set 
^drcura."   ^^^  ''^  ^^^  declaration,  these  must  be  proved,  though  no  evi- 
stances.     dence  would  have  been  required  of  them,  had  they  not  been 
■■     ■  alleged. 

This  rule  was  more  clearly  expressed  by  Mr.  Justice  Law- 
2  East.  452.    j^ence,  in  the  case  of    Ifilliamson  v.  Allison,  Who  said,   "  that  if 
the  whole  of  an  averment  may  be  struck  out,  without  destroying 
the  plaintiff's  right  of  action,  it  is  not  necessary  to  prove  it;  but 
othewise,  if  the  whole  cannot  be  struck  out  without  getting  rid 
ofa  part  essential  to   the  cause  of  action ;  for  then  though  the 
averment  be  more  particular  than  it  need  have  been,  the  whole 
must  be  proved,  or  the  plaintiff  cannot  recover."     Accordingly 
Williamson  w.  in  that  case,  which  was  in  tort  for  the  breach  of  a  warranty  of 
Eixst  iid.       goods,  where  it  was  charged  in  the  declaration,that  the  defen- 
dant knew  the  goods  to  be  of  bad  quality,  it  was  h^ld  that  the 
plaintiff  need  not  prove  the  scienter;    because,  if   that  aver- 
ment were  struck  out  altogether,  the  plaintiff  might  still  main- 
Bristow  V.      tain  his  action  on  the  warranty  ;  but  where  a  declaration  against 
Dou"1.^665.    ^  Sheriff,  for  taking  the  goods  of  a  tenant  without  paying    a 
year's  rent  to  the  landlord,  averred  that  the  rent  was  payable 
quarterly,  whereas  it  was  payable  yearly,  the  variance  was  held 
to  be  fatal ;  for  if  the  whole  averment,  as  to  the  rent,  had  been 
struck  out,  the  plaintiff  could  not  have  maintained  his  action, 
because  some  rent  must  necessarily  have  been  averred  to  be  due. 
In  general,  dates  and  sums  are  immaterial,  and  being  stated 
under  a  videlicet,  the  party  is  not  bound  to  strict  proof;(c)  but 

Words  in  an  indictment  cannot  be  rejected  as  surplusage,  which  may  have  been 
the  ground  of  conviciion.    Commomvealth  v.  Atiuood,  11  JMass.  Rep.  93. 

But  ill  an  indictment  for  stopping  the  mail,  a  contract  with  the  Postmaster  Gene- 
ral to  transport  the  mail  was  alleged,  and  it  was  held  that  it  must  be  proved, although 
the  indictment  would  have  been  good  without  it.  United  States  v.  Porter,  3  Day^s 
Rep.  283. 

A  contract  must  be  proved  as  laid  in  the  7iarr.  Crav)-^ord  v.  jMunell,  8  Johns. 
Rep.  253.  Cunningham  v.  Kimball,  7  Mass.  Rep.  65.  Baylies  et  al.  v.  Fettyplace 
et  al.  ibid.  325.  Sed  vide  Leath  v.  Cooper,  Coohe's  Rep.  iJ49. 

An  allegation  of  fraud  or  warranty  in  a  s;i!e,  must  be  proved  precisely  as  laid. 
Snellv.  Moses,  1  .Tohns.  Rep.  96.  Perry  v.  Aaron,  ibid.  129. 

Evidence  that  a  contract  was  enlarged  by  parol,  will  not  support  a  narr.  gn  the 
contract  as  originally  made.  Philips  y.  Rose,  S  Johns.  Rep.  392. — Am.Ed. 

(c)  The  day  laid  in  the  declaration,  in  an  action  on  a  parol  contract,  is  not  mate- 
rial upon  evidence.  Stout  v.  Russel,  2  Yeates'  Rep.  33*. 

Nor  in  trespass,  pro'  ided  it  is  previous  to  the  bringing  of  the  action.  Charles  r. 
Belpitx,  2  Browne's  Rep.  319.  Et  vide  ffitherspoon  v.  Isbell,  1  Hay~M.  Rep.  12. 

If  no  day  is  laid,  or  an  impossible  day,  the  defect  will  be  cured  by  verdict.  Charles 
r.  JDespux,  2  Bro7V7ie's  Rep.  319.     Et  vide  Allaire  v.  Onland,  2  Johns.  Cas.  52. 

If  a  declaration  contain  two  counts,  and  one  of  them  state  a  cause  of  action,  which 


IN  GENERAL. 

where  any  written  instrument  or  record  is  stated,  or  the  exact      Ch.l. 
time  or  money  is  material   to  the  merits  of  the  cause,  it  then  Vamnce  m 
becomes   necessary   to  prove  the   fact  exactly  as  laid.     Here,     sta-.ces. 

however,  a  distinction  must  be  attended  to  between  an  allega — 

tion  of  substance,  which  it  may  be  necessary  to  produce  a  record 
for  the  proof  of,  and   an  allegation  of  description  which  affects 
to  state  the  contents  of  a  record.     In  the  former  case,  it  is  suf- 
ficient if  it  be  substantially  proved  ;  in  the  other,  the  least  va- 
riance will  be  fatal.     Thus,  if  it  be  alleged  that  any  fact  hap- P'"'cei  v. 
pened  on  a  day  laid  under  a  videlicet,  and  no  reference  be  made  9  emsi,  xst! 
to  any  record,  the  variance  in  the  day  will   not  be  fatal,  unless  ^"""'"'■y'°^ 
the  day  be  material  to  the  merits  of  the  action  ;(fZ)  and  there- ter,  4T.  Rep. 
fore  where,  in  an  action  for  a  malicious  prosecution,  the  decla-^    • 
ration  stated,  that  "  afterwards,  to  wit,  on  the   morrow  of  the 
Holy  Trinity,  in  the  46th  year,  &c.  at  Jf  estminster  aforesaid, 
in  the  Great  Hall  of  Pleas  there,  before,  &c.  the  plaintiff  was 
in  due  manner  and  by  due  course  of  law  acquitted  ;''  the  alle- 
gation was  held  to  be  proved  by  the  production  of  the  record  of 
^isi  Prius,  though  it  thereby  appeared  that  the  acquittal  took 
place  on  Tuesday  next  after  the   end  of  Easter  Term  ;  for  the 
substance  of  the  allegation  was  only  that  he  was  acquitted  be- 
fore the  cnmmencement  of  the  action.     So  the  statement  of  a!!'"''P^^U„  . 
Jien  facias  to  have  been  for  a  debt,  and  80s.  damages  sustained  298. 
by  reason  of  the  detention  thereof,  when  the  writ  mentioned  the 
80s.  to  have  been  given  for  the  damages  sustained  as  well  by  rea- 
son of  the  debt  as  for  the  costs  and  charges  of  the  suit,  was 
held  to  be  no  variance ;  because,  in  law,  the  costs  were  part  of 
the  damages  sustained  by  reason  of  the  detention  of  the  debt. 
In  these  cases,  however,  had  the  plaintiff  taken  upon  himself  to 
describe  the  record  by  a.  prout  patet,  &c  it  seems  that  he  would 
have  been  bound  down  to  more   liteial  statement.     And  where 
a  writ  was  stated  to  have  been  returnable  on  a  particular  day  Greene. 
and  on   production  it  appeared   the   day  was  mis-stated,  this[  j^".  Rep. 656. 


had  not  accrued  when  the  suit  was  commenced,  and  a  general  verdict  be  found  for 
the  plaintiff, judgment  will  be  reversed  on  error  Steivait  v.  M-Jiride,  1  Serg.  ij 
R.  Rep.  202. 

Wherevi  r  time  is  issuable,  it  ought  to  be  alleged  with  certainty.  Hubble  v.  Hub- 
lamuhy,  Hardii^s  Rep.  294. 

Wherever  the  time  of  doing  a  thing  is  immaterial,  evidence  of  a  different  time  is 
admissible.  But  where  it  is  material,  it  must  be  proved  ?s  laid.  Jordan  v.  Cooper 
etal  3  Serg  &  R.  Rep.  57(i.  Vail\.  Lewis  et  al.  i  Johns.  Rep.\50  Et  vide 
U.  States  V.  Vigol,  2  Dull.  Rep.  346.— Am.  Ei). 

(d)  Vide  U.  States  v.  Burnham,  1  Mason's  Rep.  57.— Am.  E». 


290  ^^  PLEADINGS 

Paitll.     being  a  misdescription  of  the  writ,  was  held  to  be  a  fatal  va- 

stances.         In  an  action  for  usury,  the  loan  was  stated  to  have  been  made 

on  the  21st  of  December,  when  in  fact  it  took  place  on  the  23d; 

Carlisle  T>.       ,jjjj  ^j^^  plaintift"  was  non-suited  on  account  of  this  variance//) 

1  rears,  r  ,  .  ; 

Cowp.  6"i.  So  in  a  plea  of  set-off"  to  a  bond,  where  the  defendant  is  requir- 
Grimwood  ed  by  the  Statute  to  set  out  in  his  plea  the  exact  sum  due  to 
6T.  Rep' 460  ^^^  plaintiff;  if  he  state  a  less  sum  to  be  due  than  actually  is, 

the  sum  so  stated  may  be  traversed,  and   the   defendant  will 

fail  on  his  plea. 

In  the  above  cases,  the  days  and  sums  were  so  material,  that 

no  form  of  pleading  could  have  helped  the  party  ;  but  where  the 
Diiiston  V.      (]jjy  Q^.  gyj,^  jg  jjQ^  material  to  the  merits  of  the  cause,  the  plain- 

lutham,  cor.     ,  -i  ...  i.\ 

BuUer  at  N.   till   may,  by  stating  it  under  a  videlicet  (as  observed  above)  es- 

P.  cited  3  1 .  j,^pg  ^i^g  danger  of  a  variance,  which  might  otherwise  be  fatal. 
Thus,  where  a  declaration  on  a  warranty  of  sheep  stated,  that 
in  consideration,  the  plaintiff"  would  buy  of  the  defendant  forty- 
five  sheep  for  54/.  lis.  &d.  the  defendant  promised  they  were 
sound  ;  and  it  appeared  in  evidence,  that  the  price  was  54/.  12s. 
&d  ;  this  not  being  laid  under  a  videlicet,  the  plaintiff"  was  non- 
suited ;  but  had  the  declaration  stated  the  purchase  to  have  been 

1 T. Rep. 240.  for  a  large  sum  of  money,  to  wit,  341.  lis.  6d.  the  variance  would 
have  been  immaterial. (o) 

Contracts  should,  in  all  cases,  be  truly  set  out ;  if  the  con- 
tract be  diff"erent  from  the  declaration   in  any  part,  the  whole 

Griffin  r.        foundation  of  the  action  fails  ;  because  the  contract  is  entire.(/t) 

Bland  tbrd, 

Cowp.  62,        

(e)  A  variance  between  tlic  ?iar)\  and  the  bond  of  which  oyer  is  given,  is  matter 
of  demurrer,  and  not  of  error.  Douglass  v.  Beam,  2  Binn.  Rep.  76. 

A  variance  between  tlie  narr.  and  Ihe  bond  on  oyer,  is  material,  and  will  be  fatal 
on  the  plaintiff's  sjiecial  demurrer  to  the  bad  rejoinder  of  the  defendant.  Cooke  r. 
Graham,  S  Crandvs  Rep.  '229. 

To  lake  advantage  ol  the  covenant  declared  on,  and  that  which  appeared  on  (he 
instrument,  oyer  should  have  been  prayed.  Anojiy.  1  Hamu.  Rep.  149. 

In  an  action  o(  dtiinue  for  two  resolutions  of  the  General  Assembly  granting  mo- 
ney to  the  plainiiff,  a  variance  between  the  writ  and  nan:  as  to  their  date,  should 
have  been  pleaded  in  abatement  ahev  oyer  of  them  had  been  craved.  JLexvisv,  Wil- 
liams, I  Hayw,  Rep.  150.  Adams  v.  Spear,  ibid.  215.  — Am.  Ed. 

(_/■)  In  debt,  on  the  Act  against  usury,  a  variance  between  the  dates  of  the  con- 
tract, laid  in  the  luirr.  and  proved  on  the  trial,  is  fatal.  Evert  v.  Barr,  4  Yeates' 
i?e/).  89.— Am.Ed. 

(g)  A  scilicet  repugnant  to  the  preceding  matter,  may  be  rejected  as  surplusage. 
Vail  V.  Lewis  et  al.  4  Johns.  Rep.  450. — Am.  Ed. 

(Ji)  In  an  action  of  assumpsit  against  a  cariier  for  the  loss  of  goods,  when  a  con- 
tract is  alleged  to  carry  them  from  A.  to  B-  a  variance  in  the  evidence  as  to  the 
terminum,  is  fatal.  Tucker  v.  Cracklin,  2  Slarkie's  Rep.  285. — Am.  Ed. 


m  GENteRAL. 


S91 


So  where  a  right  or  custom  is  pleaded,  it  should  be  stated  with       ch.l. 
all  exceptions  and  modifications  to  which  it  is  liable  ;  otherwise  Variance  in 
the  pleading  will  not  be  supported  bj  the  evidence,     ff  a  cus-      sumccs. 
torn  be  stated  as  that  of  a  particular  place,  evidence  will  not  be  — 

received  of  the   like   custom   prevailing  in  a  place  adjoining. 
Thus,  the  custom  of  tithing  in  the  parish  of  Jl.  will  not  be  evi- 
dence of  the  custom  of  tithing  in  the  parish  of  i^.  if  the  custom 
of  that  parish  only  be  pleaded. (1)     But  had  it  been  laid  as  the(0  Fiii-npau-v 
custom  of  a  larger  district,  including  both  A.  diW^  B.  it  would  Oowi>.  807, ' 
have  been  evidence  in  support  of  the  issue. (2)     In  like  manner  ,,^.  ^,., 
the  custom  of  one  manor  will  not  be  evidence  of  the  custom  of 
another  adjoining,  unless  in  cases  of  some  general  law  or  qua- 
lity, of  which  description  is  the  general  rule  of  most  manors  in 
the  northern  counties  bordering  on  Scotland,  and  therefore  call- 
ed Border  Law,  that  the  tenant  shall  be  admitted,  a"d  pay  a 
fine  on  the  death  of  every  new  Lord.(3)     On  the  same  priuci- Q'^)  ^''an  and 
pie,  a  general  custom,  that  one-half  of  a  river  shall  be  fished  by  K\y  v.  War- 
the  Lords  of  the  different  manors  on  eacii  side  of  the  water,  has '/'''>  ^-^l'''*  . 

J      •  •  1  •    1       •  '     1  •  •       ^^^-  Dike  of 

been  admitted  as   evidence  of  the  right  in  the  particular  in- Simers.t  t;. 
stance  ;(4)  and   when  the  dispute  has  been  concerning  the  right  ^|''''"^j:.'_^ 
to  a  particular  part  of  a  large  tract  of  land,  acts  of  ownership 
on  other  parts  of  the  same  tract  have  been  also  received, (5)  it -^jf,^,je^^ 
being  first  shewn  that  it  was  an  entire  waste.     (6;So  where  a'3cl».662. 
manor  has  been  encircled  by  a  belt  of  trees,  some  of  which  lay  (^j)  garry  r. 
contiguous  to  closes  belonging  to  different  owners  ;  the  cutting  |^*"';'^'"»>^<^"» 
of  trees  by  the  Lord  contiguous  to  the  close  of  A.  has  been  held  514. 
evidence  of  his  right  to  those  in  the  same  belt,  contiguous  to  the  ,g,™  .^^, .  . 
close  of  B.{7)     And  where  in  trespass  and  false  imprisonment,  t;  Wynne, 
the  defendant  justified,  as   Serjeant  at  Arms  of  the  House  of'^     &A.554. 
Commons,  acting  under  the  speaker's  warrant,  for  arresting  the  (7)  Stanley 
plaintiff" for  breach  of  privilege,  and  the  issue  was  upon  an  ^^-'liYiV^^x  h'i. 
leged  excess  of  authority  in  the  officer  executing  the  warrant, 
by  using  an  excessive  and  unnecessary  military  force,  and  break- 
ing the  plaint.iff^'s  house  after  demand  of  entrance  and   refu«al ; 
evidence  was  received  of  acts  of  violence  by  the  mob,  commit- 
ted in  parts  adjacent,  though  out  of  view  and   hearing  of  the 
plaintiff"  in  his  house,  such  violence  appearing  to  be  connected 
with  the  same  purpose  as  actuated  those  about  the  plaintiff's 

house.  (8)  (8)Kur(Iett 

In  cases  where  the  law  gives  a  general  form  of  declaration,  as  ^'-  <'"i  "'an, 

.14  East  183, 
in  trover,  ejectment,  &c.  the  plaintiff"  has  only  to  prove  his  title  * 

to  recover,  and  by  a  fiction  of  the  law,  that  title  is  considered  as 


OF  PLEADINGS 

Part  II.      proving  the  case  stated  on  the  record,  and  the  jury  are  directed 

^'*pia"ce'! '"    to  fi»^  the  facts  so  stated. 

________  Actions  may  be  again  considered  as  they  are  local  or  transi- 
tory. Local  actions  must,  as  the  term  implies,  be  laid  in  the 
county  where  the  cause  of  action  arises.  The  county  is  in  this 
case  a  material  circumstance  in  the  cause,  and  unless  the  plain- 
tiff prove  it  as  laid  in  the  declaration,  the  variance  is  fatal  to 
his  action. (i) 

But  though  the  county  is  material  in  all  local  actions,  yet  the 

place  within  it  is  not  always  so  material ;  and  where  this  is  the 

case,  the  place  mentioned  in  the  declaration,  if  named  merely 

as  a  venue  and  not  as  a  local  description  of  the  injury,  need  not 

Mersey  and    asiree  with  the  proof.     Therefore,  where  in  an  action  for  a  nuis- 

gaiioii  Conip.  ance  to  the  navigation  of  the  Irwell,  by  diverting   the  water 

pp^""^'ri7'     fi'oiu  it,  the  declaration  stated  that  the  plaintiffs,  to  wit,  at  A. 

were  proprietors  of  a  certain  river  there  called  the  Irwell,  and 

that  the  defendant  at  Ji.  aforesaid,  erected  a  weir,  and  thereby 

diverted  the  water  from  the  river,  and  injured  the  navigation  ; 

it  was  held  to  be  sufficient  to  prove  that  such  an  injury  was 

done  to  the  navigation  on  that  river  at  any  place  within  the 

county ;  for  as  it  was  unnecessary  to  give  a  local  description 

either  of  the  property,  or  of  the  thing  which  caused  the  injury, 

(j)  In  an  action  of  debt  against  a  Sheriff  for  the  escape  of  aprisoner  in  his  custody 
on  execution,  the  num.  alleged  a  judgment  reco\ertd  in  the  Court  of  Common  Pleas, 
of  the  term  of,  &c.  held  ai  Salem,  iii  the  county  ol  fVushington,  &c.  ;  in  the  record 
of  the  judgment  produced  at  the  trial,  the  place  or  town  where  the  Court  was  held 
■was  not  mentioneii  ;  it  vvas  held  that  the  variance  was  not  material.  Pugey.  Woods, 
9  Juhns.  Jtep.  8'2.  Et  vide  Hodman  et  al.  v.  Foittum,  8  Johns.  Rep.  iJl .  Page  v. 
Woods,  9  1)0.  8'J. 

An  action  against  a  Sheriff  for  a  misfeasance  in  office,  is  not  local,  and  he  may  be' 
sued  ther>  I'T  out  of  his  own  county.  Foster  v.  Baldvxin, 

An  action  for  use  and  occupation  is  founded  on  privity  of  contract,  and  is  there- 
fore iratisiiory.  Corporation  of  JVew  York  v.  Daiuson,  2  Johns.  Cos.  335,  hoiv  v. 
Hallett,  2  Caines'  Rep.  374. 

Debi  on  judgment  is  local;  so  debt  on  the  judgment  of  the  Court  of  Common 
Pleas,  must  be  brought  m  the  county  where  the  judgment  was  given.  Jimmies  v. 
Kenyon,  2  Johns.  Cas.  381. 

So  a  sen  e  facias  to  revive  a  judgment.  M'Gill  v.  Perrigo,  9  Johns.  Rep.  259. 

An  action  for  an  escjipe  is  not  local  to  the  coimty  in  which  the  judgment  or  writ, 
by  virtue  whereot  the  prisoner  was  arrested,  is  filed  of  record.  Rogert  v.  Rildreth, 
1  Caines^  Rep.  1. 

Quere,  'Whether  the  venue  ought  not  to  be  laid  in  the  county  in  which  the  escape 
was  ni'irie.  ibid. 

An  action  on  a  covenant  of  seisin,  is  local.   Clarkson  v.  Gifford,  1  Caines^  Rep.  5. 

In  iDjuiiesto  personal  property,  the  action  may  be  brought  wherever  the  defend- 
ant can  be  taken,  although  the  cause  of  action  arose  in  another  state  or  country. 
Glen  V.  Hodges,  9  Johns.  Rep.  67. 


IN  GENERAL.  ggg 

and  the  declaration  did  not  give  a  particular  description  of  ei-       ch.  I. 
ther.  A.  was  considered  merely  as  a  venue,  and  therefore  imma-  Variance  in 

,  '  •'  place. 

terial. ^ 

In  those  actions  which  are  tranailory,  the  plaintiff  has  the 
privilege  of  electing  any  county  he  pleases,  and  here,  as  both  the 
place  and  county  laid  in  the  declaration  are  merely  formal,  it 
is  not  necessary  that  either  should  agree  with  the  proof.     Thus  Orewiy  t;. 

.  .      .  Twiss  4  T, 

where  in  an  action   for  running  down  the  plaintiff's  boat,  the  R^p.  558. 
declaration  stated  the  injury  to  have  been  done  near  Half-Way 
Reach,  in  the  River  Thames  ;   and  it  was  proved  to  have  hap- 
pened in  Half-Way  Reach}  the  proof  was  held  to  support  the 
declaration.     So  where  an  action  of  assumpsit  was  brought,  on  I'rith  r.  Gray, 
an  agreement  to  procure  the  plaintiff  a  booth  at  a  horse-race,  ^'"^'' ^*^'''" 
and  the  declaration  stated  that  there  was  a  race  upon   Barnet 
Common,  in  the  county  of  Middlesex ;   and  it  appeared  in  evi- 
dence, that  the  whole  of  Barnet  Common  was  in  Hertfordshire  ; 
this  was  also  held  to  be  no  variance. 

In  these  transitory  actions,  however,  the  defendant  may  change 
the  venue  by  motion  to  the  Court,  founded  on  an  affidavit  that 
the  cause  of  action  arose  wholly  in  another  county;  and  the 
plaintiff  cannot  bring  it  back  to  the  county  where  it  was  ori- 
ginally laid,  without  undertaking  to  give  material  evidence  in 
that  county. (A;)     This  undertaking  makes  the  action  in  some  Santler 

V.  Heard, 

2  Black.  1031. 

(k)  Alter  issue  joined,  llie  defendant  may  apply  to  have  il)>  venue  changed,  pro- 
vided a  (rial  has  not  been  lost,  and  it  will  occasion  no  delay.  Delavan  v.  Baldmin^ 
3  Cairies'  Hep.  104.  J^eiii  v.  JJodge,  3  Johns.  Hep.  447. 

The  Court  has  an  equitable  [)ower  ovevvenue.  Mannings,  Doiutiing,'!  Johns. 
Rep.  453. 

To  change  the  T)e;i!>e  in  a  transitory  action,  very  special  cause  must  be  shewn. 
Woods  V.  Van  Rankin,  I  Cuines^  Rep.  1-22. 

In  Ilarishorne's  les.  v.  Pulton,  2  Dull.  R'p.  252,  the  Court  lefused  to  direct  the 
Sheriff  to  return  a  jury  from  the  county  exclusive  ot  the  city  of  Philadelphia. 

The  venue  will  not  be  changed  from  the  city  of  JVeiv  Fork,  because  the  corpora- 
tion are  plainiitfs.   Corporation  of  JVevi  York  v.  Dawson,  2  Johns.  Cas.  335. 

In  an  action  against  a  Sheriff,  the  supposed  influence  of  his  office  in  his  county,  is 
not  a  reason  for  changing  I  he  venue.  Baker  v.  Sleight,  2  Caines'  Rep.  46.  Et  vide 
JVcYw  jyiiidsor  Turjipike  v.  Wilson,  3  Cai^ies''  Rep.  137. 

The  venue  will  be  changed  in  a  suit  on  a  protnissory  note,  the  defendant  swear- 
ing to  a  defence,  and  that  his  witnesses  reside  in  another  county.  Allen  v.  Jiracc, 
1  Caines'  Rep.  107. 

But  it  will  not  be  changed  because  there  is  a  party  spirit  in  the  county,  where  the 
action  is  brought,  against  the  party  applying.  Zobieskie  v.  Bander,  1  Caines'  Rep. 
488. 

In  an  action  for  a  libel,  the  Court  will  not  change  the  venue,  oa  the  common  afli- 
^avit,  from  the  county  in  which  it  circulated  to  that  in  which  it  was  fii-st  printed  and 
publisheil.   Clinton  v.  Croswell,  Col.  &  Caines'  Cas.  399. 

In  Virginia,  the  Superior  Court  of  Chancery  have  power,  upon  general  principles 


Jgy-l  <Ji"  TLEAUINGS 

Part  II.      degree  local,  and  unless  the  plaintiff  comply  with  the  condition. 
Ti'iace! "'  'i6  will  be   nonsuited   on   the   trial.     The   defendant  therefore 

should,  in  all   cases  where  the  plaintiff  has  so  undertaken,  be 

prepared  to  produce  the  rule  at  the  trial,  in  order  to  bind  the 
plaintiff  to  his  engagement, 

1  Sid.  4i2.  It  was  formerly  held,  that  on  an  undertaking  of  this  nature, 

the  plaintiffcould  not  give  any  evidence  which  arose  in  another 
county,  but  tliat  all  his  evidence  must  arise  in  the  county 
wherein  the  venue  was  laid  ;  but  it  is  now  deemed  sufficient  if 
he  give  any  one  material  piece  of  evidence  arising  in  that  coun- 
ty; and  even  in  actions  in  their  nature  local,  if  the  different 
Salk.  6fi9.  facts  which  constitute  the  right  of  action  arise  in  different  coun- 
2T. Rep, 241.  ties,  the  plaintiff  has  his  election  in  which  to  lay  his  cause. 

A  deed  enrolled  in  Middlesex,  a  commission  of  bankruptcy 
M)Kensing-  tested  there,(l)  or  as  was  held  in  one  case,(2)  the  production  of 
i""^' vi'"v"  ^  '"^^  ^"'^'  payi^^fit ^f  money  into  Court  in  the  action,  though 
S.  36.  obtained  after  the  rule  to  change  the  venue  was  discharged,  is 

/rt^■tT^  .-      a  sufficient  compliance  with  the  undertaking  to  gtve   material 

(2)  \Vaikins    ,  '  .  ^  o 

t;.  Towers,     evidence  in  that  county:  but  in  a  subsequent  case,(3)  the  Court 

2  1.  Hep. 2/ 5.^ J-  (^op^^pfjQQ   Pleas  held,  that  only  the  proof  of  facts  necessary 

(3)  CockHiiii  to  sustain  the  action,  and  not  any  matter  in  answer  to  the  plea, 
lain  rTau'ni  would  be  Sufficient;  and  therefore,  where  the  defendant  pleaded 
5i'J.  a  tender,  and  the  plaintiff  replied  and  proved  a  subsequent  de- 
mand and  refusal  within  the  county,  they  determined  that  he  had 
not  satisfied  the  undertaking. 

So  it  has  been  said,  that  proof  of  the  cause  of  action  arising 
(i)  Gc'iuid  in  a  foreign  country,  is  sufficient,(4)  though  the  safer  way  in 
i'H^°Ri"t''  ^'^^^  ^^'^^  seems  to  be  to  apply  to  the  Court  to  discharge  the 
<i80.  rule.(5)     In  one  case  where  the  cause  of  action  arising  in  A.  the 

Ark'ToV"^  venue  was  laid  in  B.  and  an  attempt  was  made  to  change  it  to 
2  Taunt.  197.  c,  the  Court  of  Common  Pleas  refused  to  change  the  venue;(6) 

and  in  another  late  case,(7)  in  the  same  Court,  where  the  venue 
(5)Caiiiau(i  being  laid  in  London,  the  defendant  moved  to  change  it  to  Lan- 
TT.Een^'Z'js.cashire;   on  which  the  plaintiff  produced  an  affidavit,  that  the 

cause  of  action  arose  in  Surrey,  Middlesex  and  London,  being 

(G)  Collins  V. 

.lacobs,  3  Bos. .^_^ 

&  Pul.  597.       '  ,  .      ,  ,    r       .  .,  •  •  r    . 

of  equity,  to  admit  the  venue  to  be  changed  aUer  issue  jorned  in  a  county  or  interior 

'")  Hunt  V.       Court,  wliere  it  appears  that  strong  prejudices  exist  against  a  defendant,  which  were 
3ridt;ewati'r,    j,„)4nown  to  him,  until  such  issue  was  joined,  and  ih'it  a  fair  and  impartial  trial  could 
!   1  aunt.  259.  ^^^  ^^  expected  in  the  Court  wiiere  the  suit  was  depending.    Darmsdatt  v.  fVolfe, 
ilfen.  &Mvnf.  Rep.  246. 

In  South  Carolina  it  has  been  ruled,  that  where  the  inhabitants  of  a  parish  are 
liable  to  pay  for  repairing  or  making  a  causeway,  they  are  interested  in  the  suit  re- 
specting it,  and  therefore  it  is  a  good  cause  for  changiog  the  venue.  Lvnch's  exrs. 
V.  Ilorrey,  1  Bay's  Rep.  228.— Am.  Ed. 


IN  GENERAL. 


295 


for  woods  sold  ia  Middlesex,  and  delivered,  some  in  London,  and       ch.  i 
others  in   Surrey,  the  Court  retained  the  venue  upon  the  plain-    ^^'/lacr  "' 

lift' undertaking  in  the  alternative  to  give  material  evidence  in 

one  of  those  counties  ;  but  in  a  case  similar  in  its  circumstances 
to  that  of  Collins  v.  Jacobs,   above  referred  to,  the   Court  <jf  (i)  p,ice  ^■ 
King's  Bench  refused  to  bring  back  the  venue  without  the  usual  Woo.ibu.ne, 
undcrtaking.(l)     The  bare  circumstance  of  the  witnesses  resid-  ' 

ing;  in  the  county  where  the  venue  is  laid,  will  not  alone  satisfy  (;)  Sa'iHer?;. 

®         ,  ,  .       *'    ^  ''  Heard  lit  sup. 

the  undertaking.(2) 

Another  method  by  which  the  defendant  may  confine  the  ge- Order  for 
nerality  of  the  plaintiff's  statement,   and  consequently  narrow  qJ-'j^'J^,,'!,',^ 
Iiis  proof,  is  by  obtaining  a  Judge's  order  for  the  particulars  of 
the  plaintiff's  demand.     This  is  granted  almost  as  of  course  in 
most  actions  founded  on  contract,  and  when  a  bill  of  particulars 
is  delitered  under  the  order,  the  plaintiff  will  not  be  permitted 
togiveevidence^t  the  trial  of  any  demand  not  contained  therein. 
Thus  if,  in  a  bill  of  particulars  so  delivered,  the  plaintiff  state 
his  cause  of  action  to  be  on  a  promissory  note  only ,(3)  and  it  ap- (3)  Wade -<•. 
pear  that  the  note  is  void  for  want  of  a  stamp,  the  plaintiff  can- p*'"^'^^^''*^ 
not  go  into  evidence  of  the  consideration  whereon  it  is  founded 
though  the   declaration  contain  counts  on  such  consideration  ; 
but  on  such  a  particular  he  may  recover  the  interest  due  on  the 
note,  as  well  as  the  principal  secured  by  it.(4)     Again,  where  ,^^g,  .^ 
the  declaration  contained  counts  for  goods,  sold  and  delivered,  Liwrence, 
and  for  money  had  and  received,  and  the  plaintiff'  delivered  al^j^^^  > 

particular  merely  for  horses  sold  fci   the  defendant;   the  Court 
held  that  he  was  precluded  from  going  on  his  count  for  money 
had  and  received,  and  proving  that  the  defendant  iiad  sold  horses 
on  his   behalf  to  third  persons,  and  received  the  money  for 
them:(5)buta  mere  error  in  the  statement  of  the  time  v/hen  (ri)HolUnd  t 
work  was  done,  where  such  error  cannot  mislead  the  defendant,  1,^'  .""^j", 
will  not  prevent  the  plaintiff"  from  recovering.(6)     If  the  plain- 2i3. 
tiff"  has  inadvertently  delivered  a  particular  not  applicable  to  his  (g)  Millwood 
case,  he  should  apply  by   summons  to  a  Judge  to  amend  it,  for  '''■  Walter, 

2  Taunt    "21 

it  was  in  one  case  held  by  the  Court  of  Common  Pleas,  that " 
he  could  not  do  so  by  merely  delivering  a  second  bill  of  parti- 

CularS.(7)  (-)  Brown 

As  the  rules  of  pleading:  allow,  in  some  cases,  a  aeneral  form  !''.r)^*'"\r- 

-,,.  ....  .  1  I  aunt.  r!5.). 

of  declaration  to  the  plaintiff,  so  in  many  actions  the  defendant 
is  allowed  a  general  form  of  plea,  which  disputes  every  thing  in 
the  declaration,  except  those  legal  fictions  which  are  considered 
as  indisputable;  and  puts  the  plaintiff  upon  proving  the  whole  of 
he  case  he  has  stated  in  the  record. 


29(5  OF  PLEADINGS 

Tart  II.  In  other  forms  of  action,  on  the  contrary,  the  defendant  is  by 

Geaenil  issue, ^Ijp  rules  of  tlie  comtr.on  law  obliged  to  select  a  particular  part 

of  the  declaration  in  his  plea,  and  the  plaintiiFis  not  compelled 

to  prove  more  than  the  fact  which  is  denied  by  it.  Since  the 
4  Anne,  c  ic.  Statute  for  the  amendment  of  the  law,  however,  this  distinction 
is  in  a  great  measure  done  away  ;  for,  though  the  defendant 
cannot  by  one  compendious  plea  deny  the  whole  of  the  declara- 
tion, he  may,  by  leave  of  the  Court,  plead  several  distinct  pleas 
to  each  part  of  it;  and  so  put  the  plaintiff  on  proving  the  whole. 
Rule  to  pay  But  though  the  defendant  may,  by  the  general  issue  alone,  in 
CourZ '"  actions  where  such  plea  is  allowed,  put  the  whole  of  the  case 
.  staled  in  the  declaration  in  issue,  yet  there  are  some  acts  by 
which  he  is  considered  as  partially  admitting  the  declaration, 
notwithstanding  that  plea.  In  all  cases  of  contract,  where  the 
damages  are  certain  and  liquidated,  the  defendant  may  at  the 
time  he  pleads,  obtain  a  rule  for  leave  to  pay  so  much  money 
into  Court  as  he  admits  to  be  due  ;  and  this  payment  so  far 
controls  the  general  issue,  as  to  prevent  the  defendant  from  dis- 
puting that  he  did  contract  in  the  manner  stated  in  the  counts 
on  which  money  is  so  paid,  and  reduces  the  question  between 
the  parties  to  the  quantum  of  damages  which  the  plaintiff  is  en- 
titled to  recover.(/)  Thus,  if  in  an  action  on  a  bill  of  exchange, 
the  defendant  pay  money  into  Court  on  the  whole  declaration, 
the  bill,  being  admitted  by  this  act  of  the  defendant,  nefed  not 
(i)Guttericlge5e  proved  by  the  plaintiff  on  the  trial. (1)  So  where  a  defen- 
Black!  374.  dant  paid  51.  into  Court  on  a  declaration  against  him  as  a  car- 
rier, stating  a  general  contract  to  carry  the  plaintiff's  goods,  it 
was  held  that  the  plaintiff  was  not  bound  to  give  further  evi- 
dence than  the  production  of  the  rule,  and  proof  that  the  goods 
were  of  greater  value  than  the  money  paid  into  Court ;  and  that 
it  was  not  competent  to  the  defendant  to  prove  a  general  no- 
tice, that  he  "  would  not  be  responsible  for  more  than  5l.  for  any 
species  of  property  contained  in  any  article  lost  or  damaged, 
unless  the  same  were  booked  and  paid  for  according  to  the  va- 


(/)  Payment  of  money  inio  Couri,  admits  the  cause  of  action  as  stateil  in  the  plain- 
tifF's  ?;arr.  Johnston  v.  Col  Ins.  Co.  7  Johns.  Rep.  315. 

Where  money  is  paid  into  Court  on  a  policy  of  insurance,  under  a  sale  foe  that 
purpose,  the  plaintiff"  by  taking  it  out  wil!  not  be  preclu.ied  fi  om  p.'ocecding  for  a 
total  loss,  when  he  informs  the  defendant's  attorney  at  the  time  of  his  mtention  to 
proceed  for  a  total  loss.   Sleight  v,  lihinehnider  et  til.  1  Johns.  Rep.  192 

In  a  suit  on  a  bond  for  ^'  for  laiifttl  money  of  A'orth  Carolina  "  the  Court  refused 
to  admit  paper  bills  of  credit,  issued  b\  that  Slate,  to  be  paid  into  Court,  it  not  ap- 
pearing that  the  bills  were  made  a  legal  tender.  Hhelby  v.  Boydet  al.  3  Yeates^ 
Rep.  321.— Am.  Ed 


IN  GENERAL.  ggy 

lue  ;"  for  that  by  paying  money  into  Court,  the  defendant  had      ch.  i. 
admitted  the  contract,  as  stated  in  the  declaration,  and  that  he  ^'^'l''  to  I'ay 
had  undertaken  to  the  full  amount  of  the  goods. (1)     But  in  a       Co-ut. 
subsequent  case, (2)   where  the  notice  was,  "  that  no  more  than  —  ■ 

5l.  would  be  accounted  for,  for  any  goods  or  parcels,  unless  en-  'i)^  tetj. 
tered  as  such,  and  paid  for  accordingly,"  the  Court  held  that  Ec.lt."i'28. 
the  plaintitf  might  state  the  contract  of  the  defendant  in  general 


1     .     .  .  •  ■  ^  .  ,  (2)  Clarke  v. 

terms,  and  that  by  paying  money  into  Court  on  such  a  generaUiiiiv ;  vi^.-s. 
declaration,  the  defendant  would  not  admit  more  than  his  con-''*^^,' ■"•  ^''.'!y» 
tract  for  the  safe  carriage  of  the  goods,  nor  preclude  himself 
from  shewing  that  he  was,  by  reason  of  the  notice,  not  liable  to 
damages  beyond  that  sum ;  for  that  the  notice  did  not  alter  the 
contract  for  the  safe  carriage  of  the  goods,  but  only  limited  the 
amount  of  the  damages,  in  case  the  contract  should  be  broken. 
In  this  latter  case  the  Court  said  that  the  case  of  Yate  v.  Wil- 
lan  could  not  be  supported  in  its  full  extent ;  for  although  the 
payment  of  the  money  in  that  case  did  admit  the  contract  as 
stated  in  the  declaration,  it  did  not  admit  a  contract  incompati- 
ble with  the  restrictive  provision,  as  to  the  amount  of  damages 
to  be  recovered  in  case  of  loss.  And  in  a  subsequent  case, 
where  on  a  declaration  containing  counts  on  a  policy  of  insur- 
ance, and  for  money  had  and  received,  &c.  the  defendant  paid 
money  into  Court  generally,  it  was  held  that  he  did  not  thereby 
preclude  himself  from  disputing  his  liability  beyond  such  pay- 
ment, for  goods  which  where  not  loaded  according  to  the  terms 
of  the  policy.(3)  (3)MeHishr. 

If  an  action  be  brought  for  a  demand  compounded  of  different^  g^^^g^  ^^' 
items,  some  of  which  are  founded  on  good  and  others  on  illegal 
considerations,  and  the  defendant  pay  money  into  Court  on  the 
whole  declaration,  the  plaintiff  will  not  be  permitted  to  apply 
the  money  so  paid  in  satisfaction  of  the  illegal  demand,  and  to 
recover  the  other  ;  for,  the  payment  of  money  into  Court  is  an 
admission  of  a  legal  demand  only,  and  not  of  one  founded  on  a 

i  •  1        ,•        /^.  (4)  Ribbansx'. 

corrupt  consideration.(4)  CrickM 

The  payment  of  money  into  Court  under  a  rule  of  Court,  be-  ^"^^  P"'- 
ing  a  proceeding  in  the  course  of  a  cause,  it  is  obviously  the 
duty  of  the  plaintiff  not  to  call  for  evidence  of  it ;  and  if,  in  vio-  i-f^ '^  uf^'^' 
lation  of  this  duty,  he  puts  the  defendant  on  this  proof,  such  evi-  so  (ji  ■    s]  2 
dence  will  not  entitle  the  plaintiff  to  the  reply,(5)  ^''*""'  '^^''• 

Similar  in  effect  is  the  plea  of  tender,  by  which  the  defendant  Plea  ofTen- 
admits  that  the  plaintiff  has  some  cause  of  action,  and  therefore  ^^''' 
he  cannot  afterwards  call  on  the  plaintiff  to  give  further  evidence 
than  is  necessary  to  shew  the  amount  of  the  debt.     Thus,  if  in 

Qq 


ggg  OP  PLEADINGS 

Part  11.     an  action  founded  on  a  promise  to  pay  the  debt  of  a  third  per- 

Pit-asin      gjjjj   (^vhich  by  the  Statute  of  Frauds,  must  be  in  writing,)  the 

_______    defendant  pleads  a  tender,  the  plaintiff  will  not  be  called  on  to 

prove  the  promise,  but  only  the  amount  of  the  debt  due  from  the 

(i)Middletoii  person  on  whose  behalf  the  promise  was  made.(l) 

Pe?ke'^  Cas.       Besides  the  pleas  which  go  to  the  merits  of  the  action,  there 

15.  are  others  which  only  abate  it,  on  account  of  some  disability  in 

one  of  the  parties,  or  informality  in  the  proceeding  ;  and  as  these 

do  not  deny  the  right  of  action,  they  must  give  the  plaintiff  a 

better  writ.(m) 

It  would  be  quite  foreign  to  the  purpose  of  the  present  work, 
to  go  through  the  seveial  matters  which  may  be  pleaded  in 
abatement ;  it  is  sufficient  to  obser\e,  that  the  issue  in  most  of 
them  when  traversed,  lies  on  the  defendant,  who  must  prove  the 
facts  stated  in  his  plea.  Nevertheless,  in  actions  of  assumpsit, 
and  other  actions  where  damages  are  to  be  recovered,  the  plain- 
tiff must  prove  his  cause  of  action  to  ascertain  the  amount  of  the 
damages. 

A  distinction  which  has  been  taken  between  actions  of  con- 
tract and  actions  of  tort,  may  also  be  properly  noticed  in  this 

(»h)  The  rule  requiring  the  defendant  -when  pleading  in  abatement  to  give  the 
plaintiff  a  bettei-  writ  applies  u>  the  averimni  of  facts  only.  Broivn  v.  Gordon,  1 
Greenl.  Rep.  165.     El  vide  Jeiuett  v.  Jewett,  adtnx.  5  Mass.  Rep.  275. 

Defects  in  a  writ,  when  not  apparent  on  the  record,  must  be  shewn  by  plea  in 
abatement.     Cooke  v.  Gibbs,  3  Mass.  Rep.  193. 

In  an  action  on  a  note  given  by  h  compuny,  when  the  defendants  pleaded  in  abate- 
ment, that  another  person  belongi  d  to  the  company  who  was  not  sued;  it  must  ap- 
pear by  the  plea,  thai  he  was  of  the  company  when  the  note  was  executed.  JUns- 
•worth  V.  Dyer,  2  Root.  Rep.  202. 

A  plea  in  abate n.ent  ihut  other  persons  ought  to  have  been  joined  as  plaintiffs  in 
the  writ,  should  set  foi  th  particularly  who  those  persons  are,  and  describe  them  so 
as  to  enable  the  plaintiff  to  make  a  better  writ.  fVadsworth  v.  Woodford,  1  Day's 
Rep.  28. 

A  plea  in  abatement  to  a  former  action  must  shew  that  it  is  pending,  and  must  re- 
fer to  ihe  record.     Clifford  v.  Coney,  1  Mass   Rep.  495. 

A  want  of  form  in  such  a  plea  may  be  taken  advantage  of  on  a  general  demurrer. 
ibid. 

Alienage  must  be  pleaded  in  abalement,  except  in  real  actions.  Seivell  v.  Lee, 
9  Mass.  Rep  363.    Martin  \.  Woods,  ibid.  377.     Hutchinson  v.  Brock,  ibid.  119. 

A  plea  in  abatement  that  the  defen'lant  was  -a  feme  covert,  was  stricken  off,  be- 
cause there  was  no  affidavit.  Rapp  v.  EUioit,  2  Dall.  Rep.  184.  S.  C.  I  Teates' 
Rep.  185. 

A  dilatory  plea  should  always  be  sworn  to.  Day  v.  Hambergh,  1  Brovme^s 
Rep.  77. 

A  plea  in  abatement  that  there  were  other  executors  not  named  in  the  writ,  was 
held  bad,  because  the  plea  should  have  stated  that  those  other  executors  were  qua- 
lified  and  took  upon  themselves  to  execute  the  will.  Burrow  v.  Setter^s  exrs.  1 
ffuyrv.  Rep.  501.— Asi.  Ed. 


IN  GENERAL.  gQQ 

place.    In  *he  former,  if  one  of  several  partners  or  joint-tenants  Ch.  I, 

bring  an  action  alone,  the  defendant  may  give  the  right  of  the  abatement, 

others  in  evidence  on  the  generahissue,  and  the  plaintiff  will  on __^ 


such  evidence   be  nonsuited.(l)      But  if  an  action  of  tort  ben)  Lcghse  v. 
brought  by  one  partner  alone,  this  must  be  pleaded  in  abate-  o s'"^'''*'^' 
ment,  or  else  the  defendant  will  be  precluded  from  proving  the 
fact  for  any  other  purpose  than  that  of  taking  off  a  moiety  of  the 
damages. (2)     If  the  defendant  be  liable  jointly  with  other  per-  (2)  Bioxham 
sons  who  are  not  joined,  and  is  sued  in  assumpsit  or  other  ^^-^'^'^^  Iqj' 
tion  founded  on  contract,  this  must  be  pleaded  in  abatement.(3) 
In  some  cases(4)  where  actions  against  carriers  have  stated  facts  l^|^',jjg"'jgyj,j. 
which  implied  a  contract,  though  the  form  adopted   has  been  3611. 
tort,  it  has  been  considered  that  the  defendant  was  equally  en- /•4\  yj,jg3„j, 
titled    to   this    plea,    as    if  an  action  of  assumpsit   had   been '"«•  ta  Wilson, 
brought ;(«)  but  it  has  been  since  held  by  the  Court  of  King's      '   ^^'"^ 

(7i)  An  action  of  fori  may  be  brought  against  one  or  more  defendants,  and  if  two  de- 
fendants join  in  pleading  the  general  issue,  and  the  jury  exculpate  the  one,  and  find 
the  other  guilty,  this  will  be  no  cause  of  setting  aside  the  verdict.  Wright  v.  Coo- 
per, 1  Tyl.  Rep.  425. 

In  a  boek  debt  suit,  under  the  Statute  in  Connecticut,  brought  against  one  on  a 
joint  contract,  to  take  advantage  of  it,  the  plea  must  be  in  abatement,  and  cannot  be 
Used  on  thi-  general  issue.     Bradley  v.  Camp,  Kirb.  Rep.  77, 

In  an  action  of  assmnpsit,  a  plea  that  the  promise  was  made  by  the  defendant,  and 
one  of  the  plaintiff's  jointly,  and  not  by  'h- defendant  separately,  must  be  pleaded 
in  abatement.  Robinso7i  v.  Fisher,  3  Caines'  Rep  99.  Ruggles  v.  Patton,  8 
Mass.  Rep.  480.     Barstow  et  al.  v.  Fossetl,  II  Do.  250. 

So  in  a  similar  action  where  there  are  several  persons  jointly  indebted  or  jointly 
responsible,  and  all  of  them  are  not  defendants,  it  must  be  pleaded  in  abatement, 
and  cannot  be  taken  advantage  of  at  the  trial.  Ziele  et  al.  v,  Campbell,  exrs.  2 
Johns.  Cas.  382. 

One  joint  owner  of  a  chattel  may  bring  trover  or  trespass  for  his  share  or  interest 
snd  the  defendant  cannot  takf  advantage  of  it,  at  the  trial,  but  must  plead  it  in 
abatement.     Wlieehori^ht  v.  Depeyster,  1  Johns.  Rep.  471. 

In  tr'-spass  against  three  defendants,  two  w.  re  taken,  and  the  oth«r  returned  not 
fouf^d.  The  plaintiff  declared  against  the  two,  in  Court,  simul  cum  the  other;  the 
two  dffet^dants  pleaded  the  general  issue,  not  guilty,  and  the  jury  founds  verdict 
of  not  guilty.  The  defendants  moved  in  arrest  of  judgment,  on  the  grouncrthat  the 
plaiiiliff  could  not  proceed  until  all  the  defendants  were  brought  into  Court.  But 
it  was  held  that  the  torts  being  JoMJi  and  several,  the  plaintiff  ought  a"  his  election 
proceed  agaitisi  onr  or  mote  of  the  defendants.  Rose  v.  Oliver  et  al.  2  Johns.  Rep. 
365.  Lansing  v.  Montgomery,  ibid.  382.  Bishop  v.  Ey  et  al.  9  Do.  294.  Low 
V.  Mnmford,  1 4  Do,  426.     Sutton  v.  Clarke,  G  Taniit.  Rep.  29. 

But  there  is  a  distinction  between  personal  actims  o\'  tort,  and  such  actions  when 
they  concern  real  property.  Therefore  if  one  t'-nant  in  common  only  be  sued  in 
trespusn,  trover,  or  case,  for  any  thing  respecting  the  land  held  in  common,  he  may 
plead  ihe  tenancy  in  common  in  abatement.  Vide  I  Satind.  Rep.  291.  e.  Thorn- 
-.on  et  al.  v.  Ilopkim  et  al  11  Muss.  Rep.  419. 

Bui  this  rule  -loes  not  a;iply  where  the  title  of  land  cannot  come  in  question; 
ihus  where  the  .\ot  complained  of,  consists  of  malfeasance.  Vide  Xow  v.  Mim- 
ford,  14  Johns.  Rep.  436. 


300  Of  PLEADINGS 

Part.  II.  Bench,  that  where  a  person  is  sued  merely  on  a  common  la\v 

abatement.  ^^^J'  ^^  ^  Carrier  on  the  custom  of  the  realm,  &c.  it  is  no  an- 

__________  swer  for  him  to  say,  that  another  person  was  jointly  liable  with 

(1)  Aiiscii  V.  him  (1)     It  was  before  held,  that  in  actions  founded  on  a  mere 
Waitrhonse,  tortious  act  or  trespass  committed  by  several,  there  can  be  no 
57  Gf^o.  3.  "  such  plea,  for  each  tortfeasor  is  separately  liable.(2)  (o) 
Psm^h"T'  ^^  actions,  however,  founded  on  a  mere   contract   brought 

Taunt.  802, 

(2)  Powtll  y.      Where  there  are  several  tenants  in  common,   and  all  do  not  join  in  an  action  of 
■R      ^'fi';''     '  '''es/»ass  7!<are  c/a2<s?<myie^/i,  the  defendant  cannot  take  advantag<^  of  it  at  the  trial, 

but  must  plead  it  in  abatemeiit.  Brotherton  et  al.  v.  Hodges  et  al.  6  Johns.  Rep. 
108.  .S'.  P.  Braciish  v.  Scliaih,  3  Do.  151.  Austin  et  al.  v.  Hall,  13  Do.  286.  Low 
V.  Mumford,  14  Do.  426. 

But  in  Watson  etux.  v.  King,  4  Campb.  Hep,  2*2,  Lord  Euesbobocgh  held, 
that  trover  was  maintainable  for  three-fourths  of  a  ship. 

That  the  assumpsit  was  made  by  the  defendant  and  one  of  the  plaintiffs  jointly, 
must  be  pleaded  in  abatement.  Robinsons.  Fislier,3  Caines''  Rep.  99. 

Where  the  defendant  promised  to  pay  each  of  several  partners  his  specific  propor^ 
tion  of  the  debt,  in  an  action  by  one  of  thera  for  his  proportion,  the  defendant  can-= 
not  object  to  the  nonjoinder  of  the  others.    Rutm  v.  Morris,  3  Caines'  Rep.  54. 

In  assumpsit,  thejoinder,  as  defendants  of  parties  who  did  not  join  in  the  promise, 
need  not  be  pleaded  in  abatement,  but  may  be  taken  advantage  of  under  the  general 
issue.  To-MU  V.  Goodrich,  2  Johns.  Rep.  213, 

But  a  suit  on  &  joint  and  several  bond,  roust  be  brought  either  against  aU  the  ob- 
ligors jointly,  or  one  of  them  singly,  and  not  agaiustany  intermediate  number;  and 
if  an  error  in  this  respect  appear  on  the  record,  the  judgment  will  be  reversed, 
though  it  had  not  been  pleaded  in  abatement.  Leftiidchy.  Berkky,  1  Hen.  &  J\Iunf. 
Rep.  62. 

In  a  suit  on  a  bond  against  five  obligors,  the  sixth  being  omitted  ;  it  appearing  from 
the  narr.  ihey  were  securities  for  him  ;  but  it  not  being  alleged  that  he  had  sealed 
the  bond,  and  no  plea  in  abatement  having  been  filed,  the  Court,  after  verdict  for 
the  plaintiff,  will  presume  the  obligor  not  named  to  be  dead,  though  it  be  not  so 
stated  in  the  narr.      Winsloiv  v.  The  Common-wealth,  2  Heii.  &  Mnnf.  Rep.  459. 

But  where  one  obligor  of  a  bond  is  sued,  it  must  be  pleaded  in  abatement,  and  can- 
not be  taken  advantage  of  on  the  production  of  the  instrument  at  the  trial. ■ 

V.  Jldms.  of  Kenon,  1  Hatftv.  Rep.  216. 

Where  the  assignees  of  a  bankrupt  partner  bring  a  suit  for  a  partnership  debt,  and 
there  is  no  plea  in  abatement,  they  are  entitled  to  recover  a  moiety.  Harclay^e 
assignee  v.  Carson,  2  Hayw.  Rep.  243.  Et  vide  Hostler's' exrs,  v.  Skull,  Tayl. 
Rep.  152. 

If  one  joint  tenant  or  tenant  in  common  sue  for  the  whole  land,  and  only  prove 
himself  entitled  to  one-ihird,  he  shall  not  at  the  trial  be  nonsuited,  but  shall  have  a 
verdict  for  such  a  part  as  he  proves  his  title  to.  Af  Fudden  v.  Haley,  2  Hay's  Rep 
457.  Middleton  v.  jPo^ry,  ibid.  539— Am.  Ed. 

(o)  If  separate  suits  be  brought  against  several  defendants,  for  a  joint  trespass,  the 
plairitiff  may  recover  separately  against  each,  but  he  can  only  have  one  satisfaction. 
tavingston  v.  Bishop,  1  John-;.  Rep.  289. 

Vid'-  Juiox  v.  Work,  1  Browne's  Rep.  101.  Ammonett  v.  Harris,  \  Hen.  & 
Munf  Rtl).  488.  Wilkes  v.  Jackson,  2  Do.  355.  Et  vide  Rubble  v.  Turner,  2 
tten.  &  Munf.  Rep.  38.— Am.  Ed, 


IN  GENERAL, 


301 


against  several  persons,  the  plaintiff  on  the  general  issue  must  ch.  r. 

recover  against  all  or  none,  and  this  whether  he  declares  in  as-  P'«^ms  in 

11          1-         -1-11         .•         •       .,      .     .1  abatement. 

sumpsit  or  tort;   and  tneretore  u  a  declaration  in  tort  allege  a 


deceit  to  have  been  effected  on  the  plaintiff  bj  means  of  a  war-  \Ve«it)  Kin 

ranty  made  by  two  defendants  upon  2^.  joint  sale  by  them  both,  1^2  East,  isa.' 

the  plaintiff  cannot  recover  upon  proof  of  a  contract  of  sale  and 

warranty  by  one  only.     On  the  contrary  where  the  tort  or  ne-  Govett  v. 

gligence,  and  not  the  mere  breach  of  contract,  is  the  ground  of  ?'Ji'""'sf ' 
o   *9  '03  East,  62. 

action ;  as  where  several  being  employed  to  remove  a  hogshead 

of  wine  for  certain  reward  to  be  paid  to  one,  and  certain  other     'i^^"'^^^*^* 

reward  to  be  paid  to  the  others  ;  the  wine  was  spilt  by  negli-pia:  and  Max 

gence,  and  an  action  in  tort  was  brought  against  all,  there  the^  Rep.'^454^ 

Court  held  that  one  only  might  be  found  guilty,  and  the  others  a"<i  12  East. 

acquitted. 


(  30S  ) 


CHAP.  11. 


OF  THK  EVIDENCE    IN  ACTIONS    OF    ASSUMPSIT. 

Pari  II.  The  action  of  assumpsit  takes  the  largest  range  of  all  those 

______  wliich  are  founded  on  contract ;  for  whatever  duty  arises  from 

the  acts  of  the  parties  without  any  actual  contract  between  them, 
from  a  parol  agreement,  or  from  a  contract  in  writing  not  under 
seal,  the  performance  of  it  is  properly  enforced  by  this  species 
of  action.(a) 

(fl)  In  an  action  of  assumpsit,  the  promise  is  the  gist  of  the  action,  and  cannot  br 
cured  even  by  verdict    TViuston  v.  Francisco,  2  Wash.  Rep.  187. 

In  an  action  upon  a  note  of  hand,  there  must  be  an  express  assumpsit  laid  in  the 
narr.  and  merely  reciting  the  note  of  hand  in  h(EC  verba,  "v'lW  not  be  sufficient. 
♦  Cooke  V.  Simms,  2  CaWs  Rep.  239. 

Assinnpsit  will  not  lie  on  a  policy  of  insurance  of  a  corporate  body,  (being  wncfer 
seal)  unless  anew  consideration  be  averred.  JMar.  Ins.  Co.  of  Alexandria  T. 
Young,  I  Crancli's  Rep.  i^l. 

If  Jl.  agrees  by  contract  under  seal,  to  do  certain  work  for  B.  and  does  part,  and 
is  prevented  by  B.  from  finishing  it  according  to  the  contract,  A.  cannot  maintain 
an  action  of  assumpnt  for  the  work  actually  performed,  but  must  sue  upon  the  sealed 
instrument.  Youngs.  Preston,^  C^anch's  Rep  2.39. 

But  an  action  of  assumpsit  will  lie  on  a  parol  agreement,  made  subsequent  to  one 
under  seal,  even  though  it  altered  the  terms  of  agreement.  Baird  v.  Blaigrove, 
1  ff'ash.  Rtp.  1"0. 

The  maxim  ai  minimis  non  curat  lex,  does  not  apply  to  money  due  from  one  ano- 
ther, however  small  the  sum  ;  a  creditor  is  entitled  to  an  action  if  but  for  a  single 
cent.  Boydenv.  Jlloore  adm.  5  Mass.  Rep.  365. 

Where  a  penalty  is  given  by  a  Statute,  and  an  action  on  the  case  is  provided  for 
its  recovery,  an  action  on  the  case  for  a  tort  is  intended,  and  not  in  assumpsit;  for 
no  assumpsit  is  implied.  Peabody  v.  Hoyt,  10  Mass.  Rep.  36. 

I.  What  is  a  sufficient  consideration  for  an  assumpsit. 

A  moral  or  equitable  obligation  is  a  sufficient  consideration  for  an  assumpsit. 
Clark  v.  Herriiig,  5  Binn.  Rep.  33.  Forster  v.  Fuller,  6  Mass.  Rep.  58. 

Quere,  Whether  a  tnoral  obligation  will  support  an  action  on  an  implied  assump- 
sit.    Overseers  of  Tioga  v.  Overseers  of  Seneca,  14  Johns  Rep.  380. 

A  promise  deliberately  made,  although  without  an)  consideration,  if  it  shall  in- 
duce a  third  person  from  the  confidence  he  reposed  in  it,  to  part  with  his  property, 
is  binding.   Wilsons.  Clements,  3  Mass.  Rep.  I. 

Forbearance  to  sue  is  a  sufficient  coiisideratlon  for  a  promise  to  pay  the  debt  of 
another.  Etting  v.  Vanderlyn,  4  Johns.  Rep.  23". 

To  make  a  consideration  sufficient  in  law  tor  supporting  an  assumpsit,  there  must 
be  some  beneft  arising  to  the  defendant, 'or  some  injury  or  /oss  to  the  plainliS*. — 
f/amakerv.  Eberly,  2  Binn.  Rep.  509. 

Where  the  interest  of  a  roan  is  promoted,  though  not  at  his  request,  and  he  after' 


WRITTEN  CONTRACTS.  3q|I 

The  plea  of  non  assumpsit  putting  the  whole  case  in  issue,      Pai  t  II. 
makes  it  incumbent  on  the  plaintiff'  to  prove  all  the  circuni-    •■■ 
stances  stated  in  his  declaration.     In  this  action,  therefore,  if 
the  plaintiff"  allege  any  fact  by  way  of  consideration  for  the  pro- 
mise on  which  the  action  is  founded,  or  the  performance  of  any 

wards  deliberately  engages  to  pay,  his  promise  will  bind  Uim.     Greeves  v.  M'AUis- 
ter,  1  Broium-'s  Rep  111.  5'.  C.  2  Binn.  Rep.  591. 

The  old  rule  that  an  action  will  not  lie  where  the  consideration  \&  past,  has  re- 
ceived a  rational  explanation  tVoru  modern  Courts  of  Justice.  Though  the  service 
has  been  rendered  prior  to  the  promise,  yet  if  the  party  lie  under  a  legal  or  jiioral 
©bligation  to  pay,  the  promise  will  bind  him.  ibid. 

If  a  person  through  a  misapprehension  of  the  law,  acknowledge  himself  under  an 
obligation  which  the  law  will  not  impose  on  him  ;  or  promise  to  pay  money  from 
which  he  is  discharged  by  law,  he  shall  not  be  bound,  ff order  et  al.  v.  Tucker,  7 
JUass.  Rep.  449.  Freeman  et  al.  v.  Boyerton,  ibid.  48,3.  Pearson  v.  Lord,  6  Do. 
81.  May  v.  Coffin,  4  Do.  341.  Garland  v.  The  Salem  Bank,  9  Do  408. 

But  if  a  person  promise  to  pay  a  debt  from  which  he  is  discharged  under  a  com- 
mission of  bankruptcy ,  the  promise  will  revive  the  original  cause  of  action,  and  be  a 
sfifficient  ansv.'er  to  the  discharge.  Maxim  v.  Morse,  8  Mass.  Rep.  VZ7. 

« 
2.  Assumpsit  for  -^vork,  labour,  and  services. 

Where  services  are  readered  merely  in  expectation  of  a  legacy,  iBit/toiit  any  con- 
tract, express  or  implied,  an  action  for  services  cannot  be  maintained  against  the 
executors.  Little  v.  Daivson  et  al.  4  Dall.  Rep.  jlll. 

But  \iut  the  request  of  the  testator,  it  will.  Roberts  v.  Sxuift  et  al  1  Yeates'  Rep. 
209. 

And  whether  the  promise  was  before  or  after  the  services.  Snyder  v.  Castor^ 
i  Teates'  Rep.  253. 

An  action  lies  by  an  illegitimate  child  against  the  administrators  of  his  putative 
father,  on  a  proiuise  of  the  intestate,  made  in  consideration  of  services*.  Conrad  v, 
Conrad,  4  Dall.  Rep.  130. 

3.  Assumpsit  for  use  and  occupation. 

In  assumpsit  for  use  and  occupation,  the  plaintiff  must  prove  a  contract,  but  the 
proof  may  be  either  direct  or ptesumpti-oe .  If  he  prove  that  ihe  defendant  occu- 
pitd  the  land  by  his  permission,  the  law  will  imply  a  promise  to  pay  a  reasonable 
pent.   Hen-Mood  v.  Cheeseman,  3  Serg.  &  Rep.  500. 

But  if  defendant  came  in  as  a  trespasser,  the  plaintiff  cannot  recover  in  this  ac- 
tion, ibid. 

Assumpsit  is  founded  on  privity  of  contract, — not  privity  of  estate:  ibid. 

4.  Assumpsit  for  money  luid  and  received. 

The  action  for  money  had  and  received  is  a  liberal  kind  of  action,  and  will  lie  in 
ca3''s  where,  by  the  ties  of  nat'iral  justice  and  equilv,  the  defendant  ought  to  refund 
thn  money  paid  to  him;  but  where  the  party  might,  with  good  conscience,  receive 
the  money,  and  there  was  no  deceit  or  unfair  practice  in  obtaining  if,  although  it  was 
money  which  tlie  party  oould  not  recover  by  law,  the  action  has  never-  been  so  far 
extended  as  to  enable  the  pxrty  who  paid  the  money  voluntarily,  to  recover  it  back. 
Morris  V.  Farin,  1  Dall.  Rep.  148.  Bidnv)  v.  Gnddard,  1  Molt  &  M  Cord's 
Rep.  54. 


a04^  ASSUMPSIT. 

Part.  II.     act  which  was  necessary  to  be  done  by  him  previous  to  hiscall- 

^ ing  on  the  defendant  to  complete  his  part  of  the  contract,  he  is 

obliged  to  prove  it. 


SECTION  I. 

Evidence  in  actions  on  written  contracts. 

Ch  IJ.  s.  1.  If  the  contract  be  in  writing,  the  hand  writing  of  the  party 
"~""~~~~~  against  whom  it  is  to  be  given  in  evidence,  must  be  proved  ei- 
Vide  ante,      ^j^gj,  j^^  ^^^  subscribing  witness,  or  by  the  means  before  pointed 

It  would  seem  that  in   this  action,  it  must  be  expressly  p^-oved  that  raoiley  has 
come  to  the  defendant's  hands.   Huskins  v.  Dunham,  1  Anth.JsT.  P.  Cas.  5'2,  Par- 
^  her's  exra.  v.  Fassett's  exrs.  1  JIar.  &  Johns.  Rep.  337.     (Sed  vide  2  Brod.  SJ 

JSing.  Rep.  3G9.  Schee  v.  Hassinger,  2  Bin?i.  Rep.  325  ) 

The  distinction  between  specific  property,  and  money  is  well  established  ;  in  the 
one  case,  the  true  owner  will  have  a  right  to  recover  it  from  any  person  foand  in 
possession  of  it  ;  but  in  the  case  of  money,  to  enable  llie  party  to  recover,  there 
must  be  some  privity  between  the  owner  and  receiver,  or  there  must  be  malajides, 
an  unjust  receipt  of  ti)e  money,  or  at  least  a  receipt  of  it,  without  a  valuable  consi- 
deration.    Rupeije  et  al.  v.  Emory,  2  Itull.  Rep.  54. 

In  an  action  oi assumpsit  for  money  had  and  received,  the  plaintiff  waives  dXitorts 
and  special  damagt^s,  and  goes  only  for  the  money  received,  and  so  far  confirms  the 
defendant's  acts  as  that  he  cannot  gainsay  his  right  to  receive  it.  Easlvdck  v.  Hugg, 
1  Ball.  Rep.  222. 

Assumpsit  does  not  lie  to  recover  back  money  received  under  a  judgment  in  a 
foreign  attachment  laid  in  a  foreign  countiy,  however  erroneous  the  decision  may 
be.  Rapelje  v.  Emory,  2  Dall.  Rep.  231,  S.  C.  by  name  of  Messier  v.  Ai-mory, 
1  Yeate's  Rep.  533.     Vide  Wright  v.  Towen,  1  Brotvne's  Rep .  app.  1. 

It  will  lie  in  favour  of  one,  who  has  improperly  paid  the  defendant  money.  Tlie 
Union  Bank  v.  The  United  States  Bank,  3  Mass.  Rep.Ji.  Green  v.  Stone,  1 
Har.  &  Jo/ms.  Rep.  405. 

Where  the  goods  of  one  man  are  seized  and  sold  by  the  Sheriff,  for  the  debt  of 
another,  1  have  Jjut  little  doubt  but  tliat  the  person  whose  goods  are  unjustly  sold 
may  waive  the  tort,  and  bring  assumpsit  against  the  plaintiff  in  the  original  suit,  for 
the  proceeds  which  have  come  to  his  hands.  Per  Yuates  J.  Bank  of  J^.  Ame- 
rica V.  M'  Call,  4  Binn.  Rep.  374.  Et  vide  Cummings  et  ux.  v.  JK'oyes,  10  Mass. 
Rep.  433. 

Assumpsit  will  lie  to  recover  money  paid  to  another,  as  the  plaintiff's  agent. 
Floyd  V.  Bay,  3  Mass.  Rep.  403. 

It  will  lie  on  an  express  promise  to  pay  the  factor  of  any  one  for  the  use  of  the 
principal,  where  the  suit  is  brought  by  the  factor.  Van  Staphorst  v.  Pearce,  4 
Mass.  Rep.  259. 

Where  money  was  awarded  by  commissioners  between  Great  Britain  and  the 
United  States,  to  be  paid  over  to  those  interested,  and  among  others  a  sum  waa 
awarded  nominally  to  one,  the  interest  of  which  was  in  another,  it  ■will  lie  ia  favour 
of  that  other  so  entitled.    Heard  v.  Bradford,  ibid.  326. 


WRITTEN  CONTRACTS.  gQg 

out,  and  care  shoul4  be  taken  that  a  proper  agreement  stamp  is  Ch,  n.  s.  i. 
impressed  upon  it,  otherwise  it  will  not  be  admitted  in  evidence  ^^'*"'i'  duties, 
for  the  purpose  of  proving  a  contract,  or  the  terms  of'it ;  and 
even  if  the  party  against  whom  it  is  offered  in  evidence,  has 
wrongfully  destroyed  it  before   it  has  been  stamped,  no  parol 

S»  where  a  surely  has  paid  llie  dcbl  of  ihe  principal.  Bunce  v.  Bunce,  Kirb. 
Rep   137. 

For  money  paid  by  mistake  in  a  settlement  ot  accounts.  Sage  v.  Alsob,  1  Root's 
Rep..  148. 

So  for  the  rents  and  profits  of  land.  Rogers  v.  Tracey,ibid.  233  Et  vide  Hal- 
dane  et  al.  v.  Duche's  exrs.  '1  Ball.  Rep.  176.   S.  C.  1  Yeates'  Re/j.  121. 

An  action  of  special  indel/itatiis  assumpsit,  wiU  lie  tor  public  securities,  whicli  are 
mortgaged.     H'hiting  v  .M'Borfaki,  I  Root's  Rep.  444. 

So,  for  money  receive"!  by  the  defendant,  and  by  him  misapplied.  Ontistead  v. 
Dotxj ,1  Root's  Rep  184.  Dumo>uVsadmr.\.  Carpen.ter,i  Johns.  Rep  183.  JStKee 
V.  Myers,  AdiUs.  Rep.  31 . 

So,  for  the  consideration  paid  where  the  party  has  not  received  the  thing  con. 
traded  for,  but  a  different  one  ot  no  valuc^     Sanfard  v.  Dodd,  2  Day's  Rep  437. 

Where  the  defendant  dh-ected  th<*  pfainiiff's  servant  to  enter  the  ground  of 
another,  and  promised  to  save  him  harmless,  an  action  of  assumpsit  will  lie  to  in- 
demnify the  defendant.     Allaire  v.  Ouland,  5  Johns.  Cas.  52. 

So,  to  recover  back  the  coiisidtiration  paid,  where  a  person  bound  himself  undef 
hand  and  seal,  to  do  a  certain  act  and  failed  to  perform  it.  Weaver  v.  Bentley,  1 
Caines's  Rep.  47. 

So,  by  the  owners  of  a  ship,  against  (he  proprietors  of  the  cargo,  to  recover  their 
proportion  of  the  general  average.     fValden  v.  Le  Roy,  ibid.  363. 

Assumpsit  will  lie,  on  a  pai-ol  promise  made  by  one  to  another,  in  favour  of  a 
third,  by  such  third  person.    Schermorhorn  \ .  Vanderheyden,X  Johns.  Rep    139. 

If  one  parly  does  not  accede  to  the  promise  as  made,  the  other  party  is  not  bound 
by  it.     Tuttle  v.  Love,  7  Johns.  Rep.  470.   ' 

Assumpsit  is  the  proper  action  wherever  there  is  a  warranty  express  or  implied, 
in  the  sale  of  chattels.     Exrs.  of  Evertson  v.  jVliles,  6  Johns.  Rep.  138. 

Assumpsit  as  well  as  debt  lies  on  a  foreign  judgment.  Hubbell  v.  Cowdrey,  5 
lohns.  Rep.  132. 

It  wih  lie  iif  favour  ol  the  trustees  of  a  town  to  recover  damages,  for  the  non-de- 
livery of  papers,  records,  Sic.  belonging  to  the  corporation.  Tnistees  of  Paris  \. 
Trustees  of  Paris,  Hardin's  Rep.  456, 

If  a  father  holds  the  legal  title  of  land  in  trust  for  his  son,  and  they  agr^e  to  sell 
it,  and  the  father  receives  the  purchase  money,  and  promises  to  pay  the  debts  of 
the  son,  a  creditor  of  the  sou,  who  had  previously  obtained  judgment  against  him 
and  levied  on  the  land,  may  sustain  assumpsit  lor  money  had   and  received  against 
the  father.     Fleming  v.  Alter,  7  Serg.  ijf  R.  Rep.  29.5. 

But  it  will  not  lie  for  the  price  of  sand  taken  from  a  sand-barto  which  both  plain- 
tiff and  defendant  claim  title,  and  sold  by  di-fendant.     Baker  v.  HoTvell,  6  Do.  476, 

It  will  lie  to  recover  a  partnership  ilcht  against  the  executors  of  a  deceased  part- 
ner, the  other  partner  being  a  certificated  bankrupt.  Lang  v.  Keppele,  1  Binn. 
Rep.  123. 

Where  a  principal  assigns  a  fund  to  trustees  to  pay  a  creditor,  whom  the  surety 
afterwards  pays,  and  the  proceeds  of  the  fund  are  afterwards  paid  over  by  the 
trustees,  the  surety  may  recover  the  same,  in  this  action.  Miller  et  al.  v.  Ord  et  al. 
2  Binn.  Rep.  382. 

It  lies  for  the  non-performanoe  of  any  promise  or  contract  (not  unlawful  in  it 

Rr 


3Qg  ASSUMPsn. 

Ch.  u.  s.  1.  evidence  can  be  given  of  its  contents.(l)  But  in  a  sessions 
Stamp  duties,  ^^g^^  where  an  agreement  was  made  on  unstamped  paper,  for 

■  the  service  of  the  pauper  for  a  certain  time,  and  the  parties  con- 

0-.  Wrf-'hl"'^^  tinued  together  for  some  time  afterwards  under  a  parol  agree- 
2  M.  &  S.      ment,  the  Court  of  King's  Bench  held  that  the  sessions  might 

self)  for  a  valuable  consideration,  when  the  non-performance  may  be  beneficial  to 
the  defendant  or  prejudicial  to  the  plaintiff.  Black  v.  Digge'sexrs.  I  Bar.  ^  ^M'ff. 
Hep.  15S. 

So,  upon  a  letter  of  credit  in  favour  of  him  who  trusts  a  third  person  upon  the 
fuith  of  that  letter.     Lawruson  v.  Mason,  3  Craiick's  Rep.  492. 

It  will  lie  for  and  against  an  executor  for  si  trespass  by  waiving  the  tort,  and  go- 
ing for  the  value  of  the  thing  taken.  JYliddletoii's  exrs.  v.  Robinson,  1  Bay^i 
Rep.  58. 

So,  upon  the  sale  of  a  debt  or  chose  in  an  action,  which  will  be  a  good  ground  for 
a  consideration.     Parker  v .  Kennedy,  ibid.  432. 

5.  Assumpsit  for  money  laid  out,  &c. 

A  surety  who.has  paid  the  debt  of  his  principal,  may  recover  against  the  prin- 
cipal in  general  indebitatus  assumpsit  for  money  paid  on  an  implied  promise.  Has- 
singer  v.  Solms.  5  Sevg  &  R.  Rep.  8. 

Although  it  was  paid  on  a  usurious  contract,  which  the  principal  mighthave  avoid- 
ed.    Ford  v.  Keith,  1  Mass.  Rep.  139. 

Money  paid  by  mistake,  may  be  recovered  back  in  an  action  for  money  had  and 
ceceived.  Bond  v.  Hays  exr.  12  Mass.  Rep.  34.  Garland  v.  Tfie  Salem  Bank, 
9  Do.  408. 

So,  to  recover  back  money  paid  on  a-consideration  which  has  failed.  Spring  et 
al.  V.  Cojln,  10  Mass.  Rep.  31. 

Wherever  money  is  paid  on  an  illegal  transaction,  if  the  party  paying  the  money 
be  not  equally  guilty  with  the  other;  as  if  the  latter  has  beeo  taken  advantage  of, 
and  oppressed  ihe  former,  it  may  be  recovered  back  in  this  kind  of  action.  The  In- 
Jiabitants  of  Worcester  v.  Eaton,  11  Mass.  Rep.  368. 

6.  Pleadings  and  evidence  in  assumpsit. 

,  An  assumpsit  will  not  lie  on  a  promissory  note  under  seal,  January  v.  Goodman, 

1  Ball.  Rep.  208. 

But  a  specialty  received  as  collateral  security  for  a  simple  contract  debt,  may  be 
read  in  evidence  in  assumpsit  on  the  original  contract  to  ascertain  the  amount  due. 
Charles  v.  Scott,  I  Serg.  &  R.  Rep.  294. 

In  assinnpsit  for  money  had  and  received,  deeds  or  other  writings  which  are  not 
the  imnieditttr  foundation  of  the  suit,  but  only  leading  to  it,  may  be  read  to  prove 
mistake,  imposition,  or  deceit.  D'ZJtricht  v.  Melchon,  1  Dall.  Rep,  428,  Sed  vide 
Weaver  v.  Betitley,  1  Cairies'  Rep.  48. 

Ill  assumj!)sz7,  the  plaintiiF cannot  give  in  evidence  a  specialty  to  prove  his  debt. 
1  Moor's  Rep.  340. 

In  an  action  for  goods  sold  and  delivered,  evidence  that  the  goods  were  not  the 
property  of  the  plaintiff",  but  belonged  to  a  third  person,  is  inadmissible.  Wright  v. 
Sharp,  1  Bro-ume's  Rep.  344. 

In  special  assumpsit,  the  contract  must  be  proved  expressly  as  laid.  Anderson  v. 
Hayes,  9,  Yeaies^  Rep.  95. 

In  indebitatus  assumpsit,  the  defendant  may  demand  of  the  plaintiff"  to  specify 
the  "aiure  of  the  ividence  he  means  to  off"er ;  and  until  this  is  done  the  Court  will 
not  suffer  the  plainiiff"  to  bring  on  the  trial.  Kelly  v.  Foster,  2  Binn,  Rep,  7. 


WRITTEN  CONTRACTS.  3Q7, 

look  at  the  paper  for  the  purpose  of  seeing  whether  the  time  had     Pai  t  II. 

1  /^  \  Stamp  duties, 

expired.(l)  ' 

In  cases  where  a  proper  stamp  has  not  been  impressed,  and  ~~~~~~~" 
only  one  part  has  been  signed,  which  continues  in  the  hands  of  j.^i^ij^^j^^jj^^f"' 
the  defendant,  the   Court  in  which  the  action  is  brought  will  ]'  "'"eton, 

15  Last,  44y. 

7.  Where  assumpsit  -will  not  lie. 

An  action  of  asstanpdt  will  not  lie  (in  a  charter  party,  under  seal,  where  there  has 
been  no  subsequent  express  promise.  Davis  v.  Qibion,  Rep.  in  Ct.  of  Conf.  102. 

Even  in  the  case  of  a  sealed  inslrument,  unattested  by  -witnesses,  an  action  of  debt 
and  not  assumpsit,  is  the  proper  remedy.  Ingram  v.  Hall,  1  IJayw.  Rep.  193.  Sed 
vide  Clements  v.  Eason,  ibid.  18. 

It  will  not  lie  for  that  for  which  a  judgment  had  already  been  obtained.  Tu7ic  v. 
Williams,  1  Hayiu.  Rep.  18. 

Nor  to  recover  back  money,  where  the  parties  ai'e  in  pan  delicto.  Gates  v.  Wins- 
low,  1  Mass.  Rep.  65. 

Nor  against  an  officer  for  neglect  or  misbehaviour  in  office.  M^JlTillan  v.  East- 
man, 4  Mass.  Rep.  378. 

Nor  to  recover  the  interest  accruing  on  a  judgment  debt,  during  the  suspension  of 
(he  execution  by  the  creditor.  Beedle  v.  Grant  etal.  I  Tyl.  Rep.  433. 

Nor  on  a  judgment,  fail  v.  Mumford,  I  Root's  Rep.  142. 

Nor  to  recover  back  money  recovered  in  a  former  suit.  Jirunson  v  Bacon,  ibid. 
210,  Burbanksx.  Lee,  ibid.  262.  Fitch  v.  Cort,ibid.  266.  Bulkley  \ .  Stewart , 
1  Bay's  Rep.  130. 

Nor  against  an  adnainistrator  for  the  debt  of  the  intestate.  Aplin  v.  Robertson, 
\  Root's  Rep.  22,5. 

Nor  against  one  who  has  received  money  as  an  agent  and  .paid  it  over.  Bingham 
V.  Tully,  ibid.  237.  Et  vide  Lyman  et  al.  v.  Ed-wards,  2  Day's  Rep.  153. 

Nor  l,»y  one  partner  against  the  other,  upon  their  unliq'iidated  accounts.  Deivit  v. 
Stamford,  1  Root's  Rep.  270.  Ozeas  v.  Johnson  adm.  4  Dall.  Rep.  434.  S.  C. 
1  Binn.  Rep,  191.  Casey  v.  Brush,  1  Caines' Rep.  293.  Beach  v.  Hotchkiss,2  Con. 
Rep.  425. 

Nor  upon  a  contract  void  in  law.   Co-wles  v.  Hart,  1  Root's  Rep.  396. 

Whether  it  will  lie  to  recover  back  money  paid,  as  the  purchase  money  of  real 
estate  by  false  and  fraudulent  misrepresentations  of  title.  Young  \ .  Kenyan,  2  Day's 
Rep.  252. 

It  will  not  for  money  had  and  received,  for  money  paid  for  land,  where  it  was 
short  of  the  quantity  expressed  in  the  deed.  Hewes  v.  Barker,  3  Johns.  Rep.  506. 

Nor  to  recover  back  a  sum  of  money  paid  to  the  defendaint  to  induce  him  to  com- 
ply with  a  previous  agreement.  Hall  v.  Schultz  et  al  4  Johns.  Rep.  240. 

Where  one  of  ihf  obligees  of  a  bond  induced  the  plaintiff  to  pav  it,  he  can  have 
no  claim  on  one  who  was  a  surety  on  such  bond.  Elmendorph  v.  Tappen  et  al.  5 
Johns.  Rep  176. 

It  will  nni  lie  to  recover  money  paid  to  the  defendant  since  the  bringing  of  the  suit. 
Ralston  v.  Bell,  2  Dull.  Rep  242. 

It  will  iiot  lie  against  a  corporation  on  an  implied  promise.  Breckhillv.  Turnpike 
Co.  3  Dall.  Rep.  496  Sed  contra,  Chesnut  Hill  Turnpike  Co.  v.  Rtitter,  4  Serg, 
&  R.  Rep.  16  The  Bank  of  Colv.mhia  v.  Patlef'tinn's  adms.  7  Cranch's  Rep,  '299. 
Dunnv.  St.  ./Indreius  Church,  14  Johns.  Rep    f)8. 

Where  goods  are  sold  on  a  credit,  indebit  itus  as.iump-iit  does  not  lie  to  recnvr  the 
price  of  them,  until  the  term  of  credit  has  ■  xpired.  Girard  v.  Ta^gtirt  et  al.  5  Serg. 
&  R.  Rep.  19. 

A  promise,  without  a  consideration,  k  nudum  pactum,  9llho(ij;h  it  be  in  writing. 
The  People  v.  Howell,  4  Johns,  Rep.  '297.  Moseky  v.  Jones,  5  Munf.  Rep.  23.-T- 
\.a.  En. 


308  ASSUMPSIT. 

Part  II.     make  a  rule  on  him  to  produce  it  at  the  stamp  Office,  for  tlie  pur 
^OT%ree-"  pos^  of  being  stamped  at  the  expense  of  the  plaintiff.(l) 

meiiis-  By  Statute  23  Geo.  Ill,  c.  58,  s.  1,  a  stamj)  duty  of  6s.  is  laid 

on  every  skin  or  piece   of  vellum  or  parchment,  or  sheet  or 


—  « 


^^p^-ii*^"^*"  pi^c®  of  paper  upon  which  any  agreement  shall  be  engrossed, 
4Tauiit.  157.  written,  or  printed,  whether  the  same  shall  only  be  evidence  of 
the  contract,  or  obligatory  upon  the  parties,  from  its  being  a 
written  instrument :"  and  by  subsequent  Statutes  additional  du- 
ties are  imposed. 

The  4th  section  of  the  first  Act  provides'  that  the  duty  shall 
liot  extend  to  any  memorandumb  or  agreements  of  the  following 
description,  viz. 

1st.  Any  memorandum  or  agreement  for  any  lease  at  rack 
^  rent,  of  any  messuage  under  the  yearly  rent  of  5l. 

2d.  For  the  hire  of  any  labourer,  artificer,  manufacturer,  or 
menial  servant. 

3d.  For  or  relating  to  the  sale  of  any  goods,  wares,  or  mer- 
chandises. 

4th.  Where  the  matter  of  memorandum  or  agreement  shall 
not  exceed  the  sum  of  20/. 

5th.  Or  any  memorandum  or  agreement  made  in  Scotland, 
that  sliall  be  stamped  with  the  duty  required  on  deeds  in  Scot- 
land. 

A  further  provision  is  made  by  the  Statute  32  Geo.  3,  c.  51, 
by  which  it  is  enacted  that  the  duty  shall  not  extend  to 
any  letter  or  letters  passing  by  the  post  between  merchants 
or  other  persons  carrying  on  trade  or  commerce  in  this  king- 
dom, and  residing  at  the  distance  of  fifty  miles  from  each  other, 
for  or  by  reason  'of  such  letter  or  letters  containing  an  agree- 
ment in  respect  to  any  merchandise,  notes,  or  bills  of  exchange, 
or  evidence  of  such  an  agreement ;  but  that  such  letter  or  let- 
ters may  be  evidence  of  such  agreement  as  aforesaid,  though  the 
same  be  not  stamped. 

But  it  is  provided  that  this  last  Act  shall  not  extend  to  any 
letter  or  correspondence  passing  between  persons  who  are  resi- 
dents of  the  same  town  or  city,  nor  to  any  letter  or  correspon- 
dence written,  or  so  passing  between  persons  not  at  the  time  of 
writing  or  sending  thereof  at  the  actual  distance  of  fifty  miles 
from  each  other.* 


•  B>  41  Geo.  3,  c.  91,  schedule  (A)  the  old  duty  is  repealed,  and  a  duty  of  I6j. 
imposf'rt,  where  the  length  of  the  agreement  does  not  amount  to  thirty  connnQon 
law  sheets;  and  for  every  entire  quantity  of  fifteen  common  law  sheets,  a  further 
duty  of  16s,    The  same  exemptions  are  continued  as  are  contained*  in  the  Stat.  23 


WRITTEN  CONTRACTS.  gQg 

The  first  of  these  Acts  of  Pailiamcnt  is  so  extensive  i^  its  ch.  ii.  s.  i. 
operation,  and  the  cases  exempted  so  clearly  expressed,  that  but  ^'^"'"P  duties, 
few  questions  have  arisen  on  its  construction.     It  has  been  held  — — — — 
that  a  written  agreement  by  a  broker  who  buys  goods  for  his 
principal,  to  indemnify  him  from  any  loss  by  the  re-sale,(l)  or  a ^j,!Jj,^^"^'J73\ 
guarrantee  by  a  third  person  for  payment  of  goods  to  be  there- Hep.  524. 
after  purchased,(2)  or  an  agreement  between  two  persons  that  ^2)  Warring- 
one  shall  take  a  share  in  goods  bought  by  the  other  on  their '"" ^- l'''»'ber, 

.    .  8  East  242. 

joint  account,  and  that  the  profit  shall   be  divided  or  the  loss  '  " 

borne  between  them, (3)  need  not  be  stamped,  all  these  being  con-  (3)  Venning 
Xmcts  relati7}g  to  the  sale  of  goods,  a.nd  therefore  exempted  by  East,  7.  '' 
the  4th  section  of  the  Act.     But  an  agreement  for  things  which  ,,  „ 
are  not  in  existence  at  the  time,  as  tor  machines  to  be  made,(4}  Bedai.s  East, 
or  for  the  sale  of  all  the  hops  whicl\  shall  be  grown  upon  a  cer-^*^"^* 
tain  number  of  acres  of  land  to  be  delivered  in  pockets  at  acer-  (5)Vvadding- 
tain  place,(5)  or  for  the  sale  of  growing  turnips,(6)  does  not  fall  [""v^o  ^05'^ 
within  the  exception  ;  for,  in  the  first  instance,  the  work  forms  a  I'ui.  452. 
part  of  the  contract;  and  in  the  cither,  the  vendee  takes  an  in- /gN  Emmer- 
terest  in  the  profits  of  the  vendor's  land.*  As  to  what  shall  be^on"'-  Heeiis, 

^  -  2  Taunt.  38. 

&  32  Geo.  3,  except  those  of  agreements  for  matters  jwt  exceeding  the  value  of 
20/.  ;  and  of  agreements  made  in  Scotkmd.  The  former  is  in  some  measure  al- 
tered by  the  enacting'clause  laving  the  duty  on  agreements  where  the  matter  thereof 
shall  be  of  the  value  of  20/.  or  upwards,  and  the  latte»  is  whuljy  omitted,  and  agret- 
inents  made  in  Scotland  subjected  to  other  duties.  The  following  exemptions  are 
also  added,  viz.  1.  "  Label,  slip,  or  memorandutn,  containing  the  heads  of  insurance 
to  be  made  by  the  corporations  of  the  Roval  Exchange  Assurance,  or  London  As- 
surance, or  the  corporations  of  the  Royal  Excliange  Assuranct;  of  Houses  and  Goods 
from  Fire  ;  and  io72(/67t  Assurance  of  Hous's  and  Goods  from  Fire  ;''  and  2.  "  Me- 
morandum or  agi'eements  made  between  master  and  mariners  of  any  coasting  ves- 
sel for  wages." 

By  Stat.  48  Geo.  3,  c.  149,  schedule  Part  I.  all  former  duties  are  repealed,  and 
he  following  duties  take  place  af'er  the  lOih  Oct.  1808,  viz.  tm  any  agreement,  or 
,1  minute,  or  a  memorandum  ihereol'  made  in  England  under  hand  only,  or  made  in 
Scotland  without  any  clause  of  resignation,  where  the  matter  thereof  shall  be  of  the 
value  of  20/.'t9gether  with  every  schedule,  receipt,  or  (^ther  matter  endorsed  there- 
on or  annexed  then  to,  where  the  same  shallnol  contain  mpre  than  1080  words,  (be- 
ing the  amount  of  fifteen  common  law  folios  or  sheets  of  seventy-two  words  each,) 
I6s. ;  and  wliere-ihe  same  shall  contain  more  than  1080  words,  I/.  lOj.  and  forevery 
entire  ijuantity  of  lOSO  words  contained  therein  over  and  above  the  first  1080  words 
a  further  progressive  duty  ofl/.  provided  that  where  divers  letters  shall  be  offered 
In  evidence  toproveany  agreement  betweer^  the  parties  who  shall  have  written  such 
letters,  it  shall  be  sufficient,  if  any  of  such  letters  shall  be  stamped  with  a  duly  of  i/. 
lOs  although  the  same  shall  in  the  whole  contain  twice  the  number  of  1080  words 
or  upwards.  The  exemptions  of  the  former  Act  are  continued.  The  Stat.  55  Geo. 
3,  c.  18  i,  increases  the  duly  of  I  6s  on  agreements  containing  1080  v.'ords  to  1/.; 
on  agreements  containing  more  to  1/.  15s.  ;  for  every  entire  (juaotity  of  1080  words, 
a  progressive  duty  of  1/.  andextcnds  the  duty  on  letters  contained  in  the  proviso  to 

?/.  15.9. 


310  ASSUMPSIT. 

Pail  II.      deemed  an  agreement  amounting  to  20/.  it  has  been  held,  that 
'"^      '   ■  if  a  man  at  a  sale  of  growing  turnips  purchase  several  lots,  none 
of  which  alone  amounts  to  201.  though  altogether  they  would  ex- 
ceed that  sum,  the  agreement  need  not  be  stamped,  though  it 
•  would  be  liable  for  any  one  amounting  to  20/.  as  being  an  inte- 

(t)Ibid.  j.gg^  jjj  ^}^g  land,  and  not  a  mere  sale  of  goods. (1)  On  the  like 
principle  it  was  determined,  where  two  men  .having  laid  a  wa- 
ger, afterwards  agree  to  double  it,  that  to  recover  the  double 
amount  two  stamps  should  be  impressed  on  the  paper,  each  be- 

(2)  Roiisonr.  ing  separate  transactions.f2) 

N.  P.  Cas.  On  the  Act  of  the  32  Geo.  3,  it  has  been  holden,  that  if  a  son, 

^~^-  managing  his  mother's  trade,  write  a  letter  to  a  creditor  resid- 

ing above  fifty  miles   from  him,  thereby  promising  to  pay  the 
debt,  such  letter  is  exempted,  as  being  between  two  persons  car- 

(3)  Macken-  rying  on  trade. (3) 

zie  V.  Banks,     •'  .^.  .        .  ,    ,  ,  , 

5  T.  Rep.  Where  a  paper  writing  is  signed  by  several   persons,  each 

J75,  agreeing  for  himself  only,  it  is  as  several  agreements,  and  re- 

quires several  stamps  r  but  if  only  one  stamp  be  impressed,  and 
it  appear  that  such  stamp  was  put  on  for  the  purpose  of  making 
it  binding  on  any  one  individual,  it  will  be  evidence  against 
him,  though  there  are  no  stamps  to  make  it  evidence  against  the 
(4)Doe(1em   others  ;(4)   and  where  several  enter  into  an  agreement  to  sub- 
Tj.'^Dav'    '' '  scribe  for  a  certain  purpose,  it  is  but  one  agreement  for  the  pur- 
ls East,  241.   pQsg  of  the  stamp  duty,  though  several  as  to  each. (5) 
(5)Daviesr.       Several  cases  have  arisen  in  which  it  has  become  a  question 
Wiliiaras,       j^Q^y  f^j.  ^jjg  alteration  of  an  instrument,  after  it  has  been  stamp- 

1  ^  Ej^st  232. 

ed,  affects  the  stamp  so  as  to  render  a  fresh  one  necessary.  The 
(6)  Kershew  „QJ^Qf.^\  j-yjg  which  has  been  laid  down  is,  that  if  the  alteration  is 
246;  cited  10  merely  to  correct  a  mistake  in  the  agreement  and  to  carry  tnto 
^sE^t^iy^'  ^^^^^  ^'^^  original  intention  of  the  parties,  no  new  stamp  is  ne- 
cessary ;  but  where  a  new  terra  is  added,  and  in  fact  a  new 
MadJoc'ks^  ^agreement  made,  such  new  agreement  will  not  be  valid  till  re- 
3  Campb.  1.  stamped.  Thus  it  has  been  held,  that  adding  the  words  "  or  or- 
(8)  Cole  w.  der,"  which  had  been  accidentally  omitted  in  a  bill  of  ex- 
Parkin,  12  change  ;(6)  or  turning  a  promissory  note  into  a  bill,  as  originally 
'  '  agreed  upon  ;(7)  or  altering  the  name  of  the  port  from  whence 
(9)Robinpon  ^)^g  certificate  of  a. ship's  registry  was  granted,  when  a  wrong 
1M.& 8.21".  port  had  been  inserted  by  mistake  ;(8)  or  rectifying  the  name 
.../^vTr    r       where  a  mistake  was  made  in  declaring  the  interest  on  a  po- 

(lO)Henfree  »  ^ 

V.  BromKy,    licy,(9)  does  not  render  a  fresh  stamp  necessary.     So(lO)  where 

o  East.  309.     ^^  umpire,  having  made  his  award,  altered  the  sum  after  the 

expiration  of  the  time  for  publishing  it,  the  Court  held  that  the 

alteration  being  a  mere  nullity,  the  award  as  at  first  made  might 


WRITTEN  CONTRACTS.  g^^ 

be  enforced.     But  where  the  defendant  having  subscribed  a  po-  ch.  ii.  s.  i. 
licj  of  assurance,  which   in   the  printed  part  was  on  ship  anrf^^""''*  '^"*"^^- 
goods,  but  bj  a  written  note  in  the  margin  was  restrained  to  " 

ship  and  out-Jit,  a  memorandum  was  afterwards  inserted  in  the 
policy  as  follows,  viz.  "it  is  hereby  agreed  that  the  interest  in 
this  policy  of  insurance  shall  be  on  ship  ;&nd  goods,  instead  of 
ship  and  out-fit,  as  originally  declared  ;"  the  Court  held  that 
the  original  risk  being  so  altered  the  policy  ceased  to  be  a  valid 
instrument,  and  that  no  action  could  be  maintained  upon  it,  ei- 
ther in  its  original  or  its  altered  form,  until  a  new  stamp  was 
impressed  upon  it.(l)  The  like  decision(2)  took  place  where  a(0  F'^nchr. 
bill,  having  been  drawn  on  a  proper  stamp  at  twenty-one  days,  East  351. 
was,  while  in  the  hands  of  the  drawer,  altered  to  fifty-one  days 

.  (2^  Bowman 

by  consent  of  all  parties,  and  by  the  like  consent  was,  after  the^"Nichoi,5 
time  for  payment  was  out,  altered  again  to  twenty-one  days  ;  it T- Rep.  537. 
being. considered  that  the  time  of  payment  being  spent  when  the 
second  alteration  was  made,  it  was   a  new  instrument,  and  re- 
quired a  new  stamp.     So  where(3)  a  promissory  note,  being ('l)^"'"^- 
made  payable  as  for  "  value  received"  generally,   was,  after  itEast,  43i! 
had  been  delivered,  altered  by  adding  the  words  "  for  the  good 
will  of  a  house  in  trade,"  this  also  was  held  to  be  such  an  alte- 
ration as  to  require  a  fresh  stamp. 

In  two  late  cases  the  Court  of  King's  Bench  took  a  distinc- 
tion between  a  paper  signed  by  the  agent  of  one  of  the  parties, 
and  by  him  delivered  over  to  the  other  party,  and  an  unsigned 
paper  so  delivered.     And  where  lands  were  let  by  auction,  and 
the  auctioneer  delivered  to  the. bidder  of  one  parcel,  a  written 
paper,  "  One  piece  of  land,  &c.  for  a  term  of  ten  years  to  Mr. 
ff^-  T',"  such  paper  not  having  any  signature,  it  was  held  that  it 
was  neither  an  agreement,  nor  evidence  of  it,  and  therefore  that  tom  v.  Tun- 
parol  evidence  might  be  given  of  the  letting ;(4)  but  where  to  a^''''s®;  ^  M, 
Similar  paper,  delivered  to  another  bidder,  the  auctioneer  sub- 
scribed his  name,  the  Court  held  that  the  paper  was  liable  to  a  jy^J^^^j^""^  .^;^ 
stamp  duty,  and  that  no  parol  evidence  could  be  given  without  445. 
first  producing  the  agreement.(5)  ^e^  j^^l,.,,,^^^ 

The  Stamp  Office  having  fixed  upon  different  dies  to  denote^-  Drybrough 
the  different  denominations  of  stamps,  no  other  but  that  appoint-  317.'    *^^" 
ed  for  the  instrument  which  is  to  be  produced  in  evidenee,  will 
be  sufficient  to  give  it  validity.     An  agreement  stamp  will  notGoodUtle 
do  for  a  deed(6)  or  lease  though  not  under  seal  ,(7)  though  of  J^*:^'^-^^"^^ 
equal  value.     But  by  Statute  37  Geo.  3,  c.  146,  instruments  on  i  T.Rei..  *^' 
stamps  of  different  denominations,  but  of  greater  or  equal  value  pj^^^^"^* 


3ia  ASSUMPSIT. 

Part  II.     than  the  proper  stamp,  may,  on  payment  of  the  duty,  and  51.  pe- 
^Fraud  °^    nalty,  be  stamped  with  the  proper  stamp. 

Instruments  unstamped,  or  on  stamps  of  less  value,  may  be 

stamped  on  payment  of  the  duty,  and  10/.  penalty  for  each  skin; 
and  if  written  on  unstamped  paper,  and  it  shall  appear  to  the 
commissioners  by  oath  or  affirmation,  that  it  was  so  written  by 
accident,  inadvertency,  urgent  necessity,  or  unavoidable  cir- 
cumstances, and  without  intention  of  fraud  ;  the  commissioners 
are  authorised,  within  sixty  days  after  the  making  of  the  in- 
strument, to  remit  the  penalty,  or  such  part  as  they  may  deem 
proper.*  '  ,  » 

Bills  of  excliange  and  promissory  notes  are  excepted  from  the 
operation  of  these  clauses,  being  provided  for  in  a  manner  of 
which  I  shall  hereafter  take  notice. 

By  the  rules  of  the  common  lav/  every  contract  might  be  prov- 
ed by  parol  evidence ;  but  by  the  Statute  29  Car.  2,  c.  3,  com- 
cject.  4.          monly  called  the  Statute  of  Fra^ids,  it  is  enacted.  That  no  ac- 
tion shall  be  brought  whereby, 

1.  To  charge  any  executor  or  administrator,  upon  any  special 
promise,  to  answer  damages  out  of  his  own  estate. 

2.  Or  to  charge  the  defendant  to  answer  for  the  debt,  default, 
or  miscarriage  of  another. 

3.  Or  to  charge  any  person  upon  any  agreement  made  in  con- 
sideration of  marriage. 

4.  Or  upon  any  contract  for  the  sale  of  lands,  tenements,  he- 
reditaments, or  any  interest  in  or  concerning  the  same.(6) 

5.  Or  upon  any  agreement  that  is  not  to  be  performed  within 
one  year  from  the  making  thereof,  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or  some  memorandum  or 
note  thereof,  shall  be  in  writing,  signed  by  the  party  to  be  charg- 

Sect.  17.         ed  therewith,  or  by  some  other  person  by  him  thereunto  law- 
fully authorised. 

And  fuvther,  That  no  contract  for  the  sale  of  any  goods,  wares, 
and  merchandises,  for  the  price  of  10/.  sterling,  or  upwards, 
shall  be  allowed  to  be  good,  except  the  buyer  sha'll  accept  part 
of  the  goods  so  sold  and  actually  receive  the  same  ;  or  give  some- 
thing in  earnest,  to  bind  the  bargain,  or  in  part  of  payment ;  or 
that  some  note  or  memorandum,  in  writing,  of  the  said  bargain, 

*  The  Statute  44  Geo.  3,  c  98,  s.  24,  grants  a  similar  indulgence  in  case  the  in- 
strument be  brought  to  the  office  within  twelve  naoiiths. 

(6)  A  parol  gift  of  land  in  fee,  creates  only  a  tenancy  at  will.  Jackson  ex.  d.  Van 
Men  y.JRogers,  2  Cames'  Cas.  in  £r.  314. 


WRITTEN  CONTRACTS.  3£3 

be  made  and  signed  by  the  parties  to  be  charged  by  such  con-  ch.  ii.  s.  i. 
tract,  or  their  agents  thereunto  lawfully  authorised.(c)  Suitute  of 

.  ,-     1  .  o        •  I'l-auds. 

The  first  provision  of  this   Statute  as  to  executors,  &c.  is  so 


(c)  The  Statute  ol  Frauds  was  made  to  prevent  frauds,  and  should  be  ex|)Oun(led 
liberally  and  beiitficially  foi'  that  purpose.  T/iom/j^on^s  les.  v.  White,  I  Dall.  Rep. 
424. 

Under  the  Statute  in  Pennsylvania,  '^  for  the  preriention  of  frauds  and  [ler Junes,'''' 
(1  Sm.  Ij.  38y,)  whicli  omiis  thv  pjovision  contained  in  iht  4th  sect,  ot  the  Statute 
29  Car.  2,  c.  3,  an  action  for  damagi-s  may  be  n)nintained  on  a  parol  contract  for 
the  sale  of  land,  or  on  a  writtt  n  contmci  with  an  a<j<  nt  who  lias  only  a  piu-ol  autho- 
rity. Eu'ing  V.  Tees,  1  Binn.  Rep.  4.50    Bell  v.  Jlndrexvs,  4  Ball.  Rep.  I.S'2. 

The  Act  of  Assembly  does  not  maki  a  pai  ol  sale  of  land  void  ;  though  it  restricts 
the  operation  of  th<-  agreement,  as  to  the  acquisition  of  an  interest  in  the  land,  and 
no  title  in  fee  simple  can  be  derived  undf-r  v.  ibid 

But  an  action  will  lie  to  recover  damages  for  the  non-performance  of  such  an 
agreement,  ibid. 

A  Court  of  Equity  will  not  compel  the  sp'cific  performance  of  a  pnrnl  agreement 
to  convey  lands,  in  a  case  where  the  party  who  asks  its  assista'ice  is  chargeable  with 
unfair  conduct,  in  relation  to  the  coniract  which  he  seeks  to  enforce,  but  will  turn 
him  away  from  that  form,  and  leave  hira  to  his  legal  remedy.     Thompson  v.  Tod, 

1  Peters'  Rep.  380. 

There  is  nothing  in  this  Act  to  prevent  a  declaration  of  trust  by  parol.  Les.  of 
German  et  al.  v.  Gabbald,  3  Binn.  Rep.  302. 

A  parol  partition  between  tenants  in  common,  made  by  marking  a  line  of  division 
on  the  ground,  and  followed  by  a  coi'T-esponding  separate  possession  ia  good,  not- 
withstanding the  Actof  2l.st  .Tiurc/i,  mi.  Ebertv.  Wood,  1  Binn.  Rep.  216. 

For  a  parol  gift  of  lands,  vlile  Zes.  of  Syler  v.  Eckhart,  I  Binn.  Rep.  378.  Et 
videXes.  of  Billiiigion  v.  Welsh,  5  Do   129. 

Supposing  that  possession  alon-  is  not  sufficient  to  take  a  case  out  of  the  Statute, 
yet  if  part  of  the  purchase  money  be  paid,  ami  the  possession  be  delivered  in  pursu- 
ance of,and  with  a  view  to  the  performance  of  the  coniract,  it  is  sufficient.  Hassler 
V.  Mesly,  2  Serg.  &  R.  Rep.  352. 

It  is  not  every  act  that  will  take  a  case  out  of  the  Statute.  Jones  v.  Peterman 
et  al.  3  Serg.  &  R.  Rep.  543. 

It  is  now  the  settled  ruli  ,  that  although  the  defendant  should  answer  and  admit 
the  contract  a*  slated  in  the  ijilljhi-  ma)  nevertht-lr-ss  protect  himself  against  a  per- 
formance by  pleading  the  Statute.   Thompson  v.  Tod,  1  Peters''  Rep.  388. 

The  dtfendant  canrjot  take  advantage  of  the  Statute  of  Frauds,  on  a  general  £fe- 
nurrer,  as  the  plaintiff  m.ty  have  a  note  or  memorandum  in  wriiing,  which  he  mi.i;ht 
produce  in  evidence,     Clark  v.  Broxvn,  I   Root's  Rep.  77.    Seymour  v.  Mitchell, 

2  Do.  143. 

The  Statute  of  Fiauils  does  not  require  the  agreement  to  make  a  coiiveyance  oj 
lands,  to  be  set  torih  in  the  narr.  jyiiller  v.  Drake,  I  Caines''  Rep.  45. 

Thf  same  rule  is  extejided  to  an  action  on  a  promise  to  pay  the  debt  oi  another. 
Elting  et  ul.  v.  Vandeiiun,  4  Johns.  Rep.  237. 

The  Statute  of  Fra'idb  does  not  include  a  covenant  to  pay  the  debt  of  another 
being  Uider  seal.  Livingston  s .  T'^e:nper ^  \  Dij   416. 

Ill  Chancery,  \\\^  Statute  of  Frauds,  will  avdl  the  defendant,  though  it  be  not 
fonnallj  pie,id<d.  Ronton  v.  Ronfm,  1  ffii  &Mimf  Rep.  91. 

The  Statute  apidies  as  well  to  executory  as  executed  cwntracts.  Benfiett  v.  Hull, 
10  Jotvw.  R..'p  364. 

Consideration  money  paid, possession  taken,  arid  valuable  impiovements  made, 
■inder  a  pa'ol  contract  for  the  conveyance  of  laads,  will,  m  equity,  take  a  case  out 

S  s 


314j  ASSUMPSIT. 

Part.  II.      plain,  that  no  serious  question  has  ever  yet  arisen,  nor  probably 

^Fi'"uWs      ^^^^  ^^'"  ^'"'*^'  ^^  ^^^  constcuction  of  it :  but  uhat  shall  be  deem- 

.______^___  ed  a  promise  for  the  debt  of  another,  has  often  been  the  subject 

of  controversy. 

of  the   Statute,  and  enti'le  the  complainant  to  a  decree  of  a  specific  performance. 
Wetmure  v.  Ifldte  et  al.  2  ^V  ForkCas.  in  Er.  87. 

Part  perfoririance  of  a  contract  will  not,  at  law,  take  it  out  of  the  Statute.  Per 
Kent  C.  J.    Jackson  ex  d  Smith  et  al.  v.  Pierce,  2  Johns.  Rep.  221. 

Wtu-re  the  verbal  evidence  ot  an  agreement  seems  contradictory,  the  Statute 
onght  especially  to  apply  to  it.     Ronton  v.  Ronton,  1  Heti.  SJ  MunJ.  Rep.  91. 

Ill  Virginia,  it  seems  that  paymmtof  the  purchase  money  is  not  sufficient  part 
peifdrmarice  of  a  verbal  contract  for  lands  to  take  it  out  of  the  Statute.  Jackson''s 
assignees  v.  Cvtright,  &c.  5  Mimf  Rep.  308. 

Qiiere,  Whether  an  execution  can  be  levied'on  property,  the  possession  of  which 
has  p^ssod  from  the  dehfir,  and  remained  in  a  third  person,  for  more  than  five 
years,  (said  to  be  fraudulent,  but  regularly  recorded  and  importing  on  its  face  to  be 
for  a  valuable  consideration,)  before  such  deed  has  been  impeached  and  convicted 
of  fraud  by  a  decree  of  a  Court  of  competent  jurisdiction  ?  Laivrence  v.  Sivann  et 
al.  5  Miinf.  Rep.  332. 

In  JV.  Carolina,  the  English  Statute  of  Frauds  extends  but  partially.  Vide  Foi^ 
V.  Fojj,  2  ff(i)iv.  hep.  131. 

So,  a  promise  to  satisfy  a  lien  on  a  vessel  belonging  to  a  third  person,  which  was 
ready  for  sea,  in  considerallo-i  that  the  plajntiff  would  pe^mil  her  to  proceed  to  sea, 
is  not  within  the  Statute.     Siaii  v.  Pigott,  1  J\'ott  cJ  JVt  Cordis  Rep.  124. 

Upon  a  contract  for  the  purchase  of  a  horje,  which  the  buyer  agreed  to  fetch  away 
and  pay  tor  on  a  certain  day,  but  the  horse  liied  in  the  interim,  the  Court  held,  that 
directions  given  by  the  buyer  as  to  the  exercisiiig  him,  and  future  treatment,  were 
not  such  cli'ar  and  unequivocal  acts  of  ownership  and  accepiance'if  i  he  horse  as  would 
make  the  bargain  executed  within  the  Statute.  Tempest  v,  Fitzgerald,  o  Barn  & 
Jild.  Rep.  f)80. 

When  a  contract  within  the  Statute  of  Frauds  is  lawfully  rescinded,  either  party  may 
have  an  action  against  the  other  for  the  re-payment  of  money  advanced,  or  the  re- 
turn of  any  thing  delivered  uni'er  the  contract,  and  may  support  such  action  by  pa- 
rol evidence.     S/terbume  v   Fuller,  5  Jlfass.  Rep.  133. 

A  promise  made  by  a  principal  to  his  agent  to  indemnify  the  latter  for  a  loss  sus- 
tained by  hi>n  in  the  principal's  service,  occasioned  by  the  wrongfid  act  of  a  third 
person,  is  not  a  promise  to  umrwer  for  the  debt,  defnult,  or  miscarriage  of  another 
person,  within  the  Stf.tute  of  Fiauds.     Stocking  v.  Sage  et  al.  1   Con.  Rep.  519. 

To  a  prnniissoiy  note  given  by  A.  to  B.  there  was  annexed  this  condition,  "that 
A.  having  thin  day  bargained  his  Starr  farm  to  B  — notu  if  A.  stands  to  the  bar.- 
gain,  the  riote  is  to  be  void — if  not,  it  is  to  stand  in  full  force.  In  an  action  on  the 
note  to  wliich  ilefendant  pleaiJed  non  atsitmpsit,  it  was  held,  that  the  Statute  did  not 
preclude  the  plaioi  iff  from  proving,  by  parol  evidence  that  th  note  was  delivered 
as  an  escrov),  what  was  the  conditions  on  which  it  was  to  take  effect,  and  that  they 
were  p>  rformed  ;  though  such  conditions  respected  a  parol  contract  for  the  sale  of 
lands  ;  the  object  of  such  testimony,  not  being  to  support  ;in  action  on  a  parol  con- 
tract for  the  sale  of  land  but  to  shew,  that  a  written  contract  to  pay  money  had  taken 
effect.     Co!/c/i  v.  Meeker,  2  Do.  3U2. 

A  parol  submission  of  a  claim  in  favour  of  an  intestate  estate,  to  arbitration,  by 
the  administrator,  is  not  within  the  Statute  of  Fi'aiids.  Jilting  v.  Munson,  2  Do  691. 

A  purchaser  at  Sheriff's  sale,  under  a  judsjment  creditorj  is  entitled  to  the  benefit 
of  (he  Statute  of  Fiauds  equally  as  the  creditor  himself.  Uildreth  v.  Sandet  al.  2 
Johns,  Ch,  Rep.  35. 


WRITTEN  CONTRACTS. 


315 


The  general  question  in  all  these  cases  is,  Whether  the  per-  Ch.  ii.  s.  i. 
son.  for  whom  the  promise  is  said  to  have  been  made,  was   ever     ^'"'"t'^o*" 

»  r  '  Frauds. 

liable  ?  for  if  he  were,  and  the  promise  of  the  defendant  is  col-  _________^^ 


Promise  to  pay  the  debt  of  another ,  &c. 

A  promise  to  see  another  come  forth  at  a  certain  lime,  or  to  pay  the  debt  is  void. 
Thomas  v.  Hells,  I  Root's  Rep.  57. 

The  undertaking  ol  assignees,  implied  in  their  acceptance  of  the  trust  declared 
in  a  deed  of  assignment  of  goods  for  the  security  and  salisfai-lion  of  c-rtain  bonajide 
debts,  is  not  a  promise  to  answer  tor  the  debis  of  another  within  the  Statute  of 
Frauds.     Drakely  et  al.  v.  Deforest,  3  Con   Rep.  '■ll-Z. 

The  son  of  the  defendant  received  ih  goods  of  the  plaintiif  <>n  freight,  and  pro- 
mised to  transport  them  to  the  place  of  destination,  and  deliver  them  to  the  con- 
signee, but  sold  and  converted  them  to  his  own  use.  The  owner  being  about  to  in- 
stitute a  suit  against  the  son  for  damages,  the  defendant  promised  the  plaintiff  by /»a- 
Tol,  that  if  he  would  forbear  to  sue  his  son,  and  institute  a  suit  agi>inst  a  thinl  per- 
son, and  should  fail  to  recover,  he  the  defendant  would  pay  the  damages.  The  plain- 
tiff did  forbear  to  sue  the  son,  instituted  a  suit  against  such  third  person,  and  faded 
to  recover.  The  proniise  of  the  defendant  was  held  to  be  within  the  Statute  of 
Frauds.     Turner  v.  Hubbell,  2  Day's  Rep.  457. 

Under  the  English  Statute  of  Frauds,  which  is  in  force  in  Rhode  Island,  an  un- 
dertaking to  pay  the  debt  of  another,  must  be  wholly  in  writing,  and  it  cannot  be 
ttdded  to,  nor  varied,  or  so  explained  by  parol  testimony,  as  to  affect  its  import. 
Clarice  v.  Russel,  3  Dall.  Rep.  4X5. 

A  promise  to  pay  the  debt  of  anoiher,  though  on  a  sufficient  consid'-ratioii  must 
be  in  writing.  Simpson  v.  Patten,  4  Johns.  Rep.  42'2  Jackson  v.  Rayner,  12  Do. 
291.  Grant  v.  JVayler,  4  Cranch's  Rep.  235.  Stevens  et  al.  v.  f^f'in,  2  JK'ott  & 
JW '  Cord's  Rep.  272. 

Security  for.  another  to  appear  at  a  certain  lay,  must  be  by  recognisance,  or  in 
■writing,  otherwise  it  is  void  by  the  Statute  of  Frauds.  Jil'J'i/'utt  v.  Johnson,  7  Johns. 
Sep.  18. 

A  promise  by  a  father,  to  pay  the  debt  of  his  son  is  void,  if  it  be  not  in  writing. 
Pease  v.  .Alexander,  ibid.  25. 

A  promise  to  pay  the  debt  of  another,  must  be  in  writing.  Rose  v.  Johnson,  Pen- 
ning. Rep.  5.     Smith  v,  Toomey,  ibid.  98. 

Where  G.  being  indebted  to  S.  and  S.  to  W.  if  G.  in  consideration  of  his  debt  to 
S.  verbally  promise  to  pay  the  debt  of  S.  to  fV. ;  but  IV,  does  not  discharge  S. ; 
the  promise  is  a  cnllaten*!  undertaking,  and  consequently  void  under  the  Statute  of 
Frauds.     Waggoner  v.  Gray,  2  Hen.  &  .Munf.  Rep.  603. 

The  forbearance  of  a  suit  is  a  snffici.-nt  consideration  tor  a  promise  to  pay  the  debt 
of  another.     Crocker  et  ux  v.  Whitney,  10  Mass.  Rep.  316. 

In  a  written  agreement  to  pay  money  on  account  of  a  third  person,  the  words 
"for  value  received"  are  a  sufficient  expression  of  consideration,  to  charge  the 
surety,  under  the  Statute  of  Frauds,  Caldwell  v.  JWKain,  2  JVott  &  M'  Cord's 
Rep.  555. 

Where  ►4.  in  consideration  that  B.  would  deliver  to  him  all  his  household  goods, 
and  that  C.  would  discharge  Ji.  from  an  execution,  promises  to  pay  C-  the  amount 
ot  the  execution,  this  is  an  origunl  undertaking,  and  not  within  the  Statute.  Skel- 
ton  V.  Brewster,  8  Johns.  Rep.  293.  Harrison  v.  Saivtel,  10  Do.  242.  Goldet  al. 
V.  Philips  et  al.  ibid.  412.  Perky  v.  Spring,  12  Mass.  Rep.  297. 

But  where  ^.  direcieil  B.  his  serv;<iit,  to  eiiter  a  certain  meadow,  which  he  said 
belong,  d  to  him,  hut  which  was  in  fact  the  meadow  of  C.  and  promised  to  save  B. 
haiinl»-8s,  the  promise  was  hf  Id  to  he  an  original  undertaking,  and  not  necessary  to 
he  in  writing.  Allans^ .  Ouland,  2  Johns.  Cas.  52. 


316  ASSUMPSIT. 


Pari  II.     lateral  in  and  in  aid  of  his  credit,  and  not  a  direct  promise  to  be 

Siaiutt  of    answerable  in  the  first  instance,  it  is  void;(l)  whether  made  be- 

________  fore  or  after  the  delivery  of  the  goods,  or  performance  of  the 


(1)  B.  N.  P. 


281.  M.iison  Though  a  proniisr  l)y  parol,  to  sell  lands  be  void,  yet  such  a  proiuUc  to  pay  for 
V.  Whai-bin,  thf  improverrn  nts  ma  !eon  lands,  is  good.  Frearv.  Hardenbergh,5  Johns.  Rep. ^72. 
2  T.  Rep.  80.  Benedict  v.  Beebce,  1 1  Do.  145. 

A  promise  to  pa\  the  debt  of  another,  aliliongh  it  be  in  writing,  is  no  good  cause 
of  action,  unless  there  be  a  sufficient  consid.-rati'>n,  which  perhaps  should  be  ex- 
pressed. Thatcher  et  al.  v.  Dinsmore,  5  JMasa.  Rep.  299.  Ilunt  admr.  v.  Mams, 
ibid.  358.  Carver  \.  Warren,  ibid.  5^5.  Ulen\.  Kittredge,  7  Do.  233.  Lentetal. 
V.  Pudelfurd,  10  J)o.  230. 

But  in  Packard  v.  Richardson,  17  Do.  122,  it  virasdecided  that  the  consideration 
need  not  be  recilod. 

Parol  sale  of  lands. 

"Where  a  deed  from  .3.  to  B.  was  ma  )e  by  the  appointment  of  C.  and  delivered 
by  ^i.  to  B  upon  a  verbal  piomise  of  JB.  to  C.  that  if  C.  wrthin  a  reasonable  time, 
should  elect  to  pay  B.  a  c-rlain  sum  oi  money,  B.  would  convey  to  C.  a  ceitaia 
house  and  land,  and  give  him  ihree  proniissory  riotes,  for  certain  suras  of  money  : — ■ 
and  if  within  a  reasonable  time  C.  should  not  elect  to  pay  the  money,  then  that  B. 
vould  not  cause  the  deed  to  bi-  reco'-ded,  but  deliver  it  to  C. — and  C.  elected  not 
to  pay  the  money  ;  vet  B.  refused  to  deliver  the  deed,  and  caused  it  to  be  recorded. 
In  an  action  by  C  against  B.  upon  this  piomise,  it  was  held  to  be  within  the  Statute 
of  Frauds,  as  concerning  the  sale  of  land,  and  theretore  not  to  be  proved  by  parol 
evidence.  Sherburne  v.  Fuller,  5  JMuss.  Rep.  133. 

A  parol  agreement  'for  the  conveyance  of  land,  is  not  absolutely  void  by  the  Sta- 
tute of  Frauds;  but  if  any  act  has  been  done  in  part  execution  'if  the  agreethent, 
■which  would  not  have  been  done,  but  on  account  thereof,  which  was  done  with  a  view 
to  the  agreement,  and  which  is  pr-judicMl  to  the  part\  doing  it;  the  parties  are  not 
permitted  to  treat  the  agreeimnt  as  a  nullity.  Davenport  v.  Mason,  15  JMass- 
Rep   85. 

Ail  agreement  concerning  the  purchas"  of  lands,  perfected  by  the  execution  of  a 
conveyance  by  the  vendor,  and  by  acce)>taiice  thereof,  ai:d  by  payment  of  the  pur- 
chase mouty,or  exicutiim  of  bomls  for  the  same,  on  the  part  of  ihe  purchaser,  is 
final  and  co'^clusive  between  the  parties  an<l  their  heirs  inlaw;  and  ought  not  to 
be  disturbed  in  eqtdty,  unless /raw^/,  or  some  manifest  mistake,  in  such  conveyance 
be  shewn  and  proved  ;  or  unless  some  note  or  memorandum  in  writing  be  made, 
pursuant  to  ih-  Statute  of  Frauds,  at  the  time  or  after  the  execution  of  such  con- 
veyance or  bond,  whereby  it  may  appear  that  the  parties  had  agreed  to  somi  fur- 
ther explanation  or  modification  of  the  terms  of  the  agreement  as  therein  expressed. 
Vance  v.  Walker,  3  Hen.  &  Mnnf.  Rep.  288. 

If  there  be  a  pai-ol  agreement  for  a  right  of  way,  or  other  interest  in  lands,  and 
any  acts  be  done  in  pursuance  thereof,  which  are  prejudicial  to  the  party  perform, 
ing  them,  and  are  in  part  execution  of  the  contract,  the  agreement  is  valid,  oot- 
•wilhstanding  the  Statute  of  Frauds.   Ricker  v.  Kelly,  1  Greenl.  Rep.  117. 

In  JMa.isaclnisetts  it  has  been  decided,  that  since  their  Statute  of  Frauds,  a petU 
tion  by  parol  is  void,  anil  that  the  law  will  not  presume  a  deed  of  partition  to  have 
been  made  by  tenants  in  common,  merely  from  their  several  possession.  Porter  v. 
Perkins,  ibid.  233. 

But  in  Pennsylvania,  Vi  parol  petition  between  tenants  in  common,  made  by  mak- 
ing a  line  of  division  on  the  ground,  anil  followed  by  a  corresponding  separate  pos- 
session is  good,  notwithstanding  the  Statute  of  Frauds.  Ebert  v.  Wood,  I  Binn, 
Rep.  216. 

And  in  JNexv  York  it  has  also  been  ruled,  that  a /w)*oZ  partition  of  land,  carried 
into  effoct,  by  possession  taken  by  each  party,  of  bis  respective  share,  according  to 


WRITTEN  CONTRACTS. 


317 


other  benefit,  for  the  satisfaction  of  which  it  is  intended  as  a  se-  ch.  ii.  s.  i. 
Thus,  if  one  man  request  another  to  supply  goods  to  a  third  .^___^ 


the  partition,  will  be  valid  and  binding  on  the  pai'ties.  Jacknon  tjc.  d.  Duncan  ct  al. 
V.  Harder,  4  Johns.  liefj.  '202. 

Where  lands  were  sold  and  conveyed  b}'  died,  describing  tlieii' metes  anil  bounds, 
with  the  supposed  quantity^  vviih  a  verbal  promise  at  tlie  same  time,  to  paytiie  gran- 
tee all  they  fell  short  on  mensu  ation  ;  such  promise  was  held  to  be  void.  Bradkt; 
et  al.  V.  Blodget,  Kbh.  Rep.  22.  J\l'urthrop  v.  Speary,  1  Day's  Re/i.  '23. 

Yet  in  another  case,  in  the  same  State,  a  parol  promise  to  pay  or  discount  lor  what 
a  tract  of  land  shall  fall  shoi  t  of  the  quantity  stated  in  the  deed,  was  held  to  be  valid , 
Mott  V.  Jlurd,  1  Root's  Rep.  73. 

A  parol  promise  to  convey  lauds,  in  consideration  of  a  promise  to  pay  for  them, 
is  void  by  the  Statute  of  Frauds.  Tainter  v.  Brockway,  ibid.' 59,  Janes  v.  Finney, 
ibid.  54'J. 

An  agreement  to  convey  lands,  cannot  be  proved  by  parol  evidence,  nor  an  agree- 
ment to  forfeit  a  certain  sum,  upon  a  failuie  to  exrcute  an  agreement  to  be  proved 
by  parol  evidence.     Goodrich  v.  JYic/wlls,  2  RooPs  Rep.  i^^S. 

A  pbro!  gift  of  land  creates  only  a  tenancy  at  will  Jackson  ex  d.  Van  .Hen  v. 
Rogers,  I  Johns.  Cas  33.  2  ^V  York  Cas  in  Er.  314. 

A  sale  of  lands  (in  JVew  Yot-k)  bv  the  Loan  Oncers,  at  auction,  is  within  tl>e 
Statute  of  Fiauds.     Jackson  ex  d.  &c.  v.  Bull,  2  JV.  Fork  Cas.  in  Er.  301. 

So  a  sale  by  a  Sheriff,  is  within  the  Statute.  Simonds  v.  Catlin,  2  Caiiies'' 
Sep.  61. 

Such  a  sale  requires  a  deed  or  note  in  writing,  9i)ecifying  witli  certainty,  the  laud 
jold.    Jackson  ex  d.  Gratz  et  al.  v.  Catlin,  2  Johns.  Rep.  '248. 

Where  L.  wrote  his  name,  and  affixed  his  seal  on  the  back  of  the  lease,  and  it 
was  agreed  that  C.  should  write  an  a'-sigument  over  the  sign  iture  and  seal  for  the 
absolute  conveyance  of  the  lease  to  T.  and  should  ke-p  the  lease  a  certain  time,  and 
C.  afterwards  wrote  an  assignment  and  delivered  the  lease  to  T.  it  was  held  that 
affixing  the  hand  and  seal  to  a  blank  pap<>r  was  not  a  note  in  writing  within  the  Sta- 
tute of  Frauds.     Jackson  ex  d.  Lhiyd  v.  Titti^,  ibid.  430. 

A  right  to  erfcct  mill-dams  so  as  to  ov  rflow  oiher  lands,  if  it  be  not  an  incorpo- 
real her'-ditaraeut,  cannot  pass  by  parol  since  the  Statute  of  Fi-auds.  Thompson  v. 
Gregory,  4  Johm.  Rep.  81 . 

A  piomise  merely  by  parnl,  by  an  owner,  to  sell  lands  to  one  who  had  settled  on 
and  improved  them,  is  void.    Frear  v.  Hardenberq-,  5  Johns.  Rep.  272. 

In  the  case  of  a  sale  of  lands  by  an  agt^nt,  and  a  proposed  purchase  through  art 
agent,  their  agreements  cannnt  be  the  foundation  of  a  suit  in  Chancery  if  they  have 
no  note  in  writing.     Buck  v.  Copland,  2  Ca/l.  Rep.  218. 

An  agreement  for  the  sale  of  lands  perlL-cted  by  the  execution  of  conveyances 
may  be  altered  where  there  is  some  not»-  or  memorandum  in  writing  made  pur- 
suant to  the  Statute  of  Frauds  aith'-  time  or  after  the  executionof  such  conveyances, 
whereby  it  appears  that  the  paitiss  had  agreed  to  some  further  explanation  or  mo- 
dification of  the  terms  of  agreement  as  therein  expressed,  Vance  v.  H'alker,  S 
Hen.  &  Munf.  Rep.  28S. 

But  the  Statute  will  not  prevent  the  recovery  of  the  rents  and  profits  of  lands, 
they  not  being  ititerest  in  the  lands.  Rogers  v.  Tracy,  I  Root's  R.'p.  233!  IVells 
V.  Dt'ming,ibid.  U9. 

So,  the  sale  ot  a  crop  of  wheal  which  is  growing,  by  a  paiol  agreement,  is  valid 
notwiiiistanding  th*-  Statute.     JSi'ewcomb  et  al  v.  Ramer,  2  Johns.  Rep.  421 . 

So,  also  in  a  right  to  cut  and  clear  away  trees  on  the  plaintiff's  farm.  Forbes  v, 
JIamil/on,  2  Tyl.  Rep.  356, 


318  ASSUMPSIT. 

Part  ir.     person,  saying,  if  he  does  not  pay  you  I  will  ;(1)  I  will  be  bound 

^ivauds'!*     '^^'"  ^'^^  payment   of  the   money  as  far  as  800/.  or  1,000/.  ;(2) 

or  other  words,  signifying  that  he  does  not  consider  himself 

(1)  Jones  f.    ^s  the  principal  debtor,  the  promise  will  not  bind  him,  unless 

Cooper,  ^_^ 

Co*p.  22r.  '  '  ~ 

,_,    .     ,  It  would  seem  that  a  iiarol  asireement  to  abide  bv  a  certain  division-line,  will  be 

(2)  Anderson      „,  .        ,  .  ,  ^-  ,...'.  .        , 
w.  Havman       siifiicient  to  prevent  either  paitv  from  claiuiing  in  ejectment  contrary  to  it,  though 

1  H.  Black.      '•"  ""i"  no'  P^^*  ^^^  lands  ;  but  such  agreement,  it  S'.t-ins,  may  be  re\oked,  or  modi- 

120,  fied  by  any  subsequent  parol  agreement.  Jacksonex  d.  JVellis  t.  Dyslin^,  2  Caines' 

Bep.  198.  Utormsv.  Snyder,  10  Johns.  Rep  109. 

A  parol  agreement  was  made  beiween  the  proprietors  of  two  adjoining  tracts  of 
land,  to  employ  a  surveyor  to  run  the  dividing  line,  and  that  it  should  be  thus  as- 
ceriained  and  settled  ;  the  line  was  run  accordinsrly,  and  marked  on  the  plat  by  the 
surveyor,  in  their  presence,  as  the  boundary  :  held,  that  such  an  agreement  was  not 
affectf  d  by  the  Statute  of  Frauds.  }ioyd''i  !es.  v.  Graves  et  al.  4  Wheat.  Rep  513. 
Et  vide  Stuyvesant  v.  Tompkins  et  al.  9  .Tohns.  Rep.  61. 

A  contract  for  the  sale  and  delivery  of  the  possession  of  land,  must  be  in  writing. 
JJoivarrJy.  East  on,  7  Do.  205. 

An  incorporeal  hereditament,  as  a  right  to  erect  mills  or  mill  dams,  can  at  com- 
mon Isw  pass  onlv  by  deed;  and  were  it  otherwise,  the  assignment  of  such  an  inter- 
est, since  the  Statute,  must  be  in  writing.  Thompson  v.  Gregory ,^  Johns.  Rep.  81. 
Et  vid»  Jackson  ex  d.  Loux  et  al.  v.  Euel.  9  Do.  298. 

If ./?.  buv  land  with  the  money  of  B-  and  take  a  convevance  to  himself,  he  is  a 
trustee  for  B.  and  it  is  such  an  implied  nr  rp.?«/ft'«^  trust  as  is  not  within  the  Statute  of 
Frauds,  and  m^y  be  proved  bv  parol  evidencr.  Foote  et  al.  v.  Colvin  et  al.  3  Johns. 
i?e/).  216.   Bowls  MT^nnA  Johns.  Ch.  Rep    582, 

In  a  similar  case  in  Pe7m.<nihania,  the  same  rule  was  recognised.  Les.  of  Thomp- 
son V.  White,  1  DnU.  Rep.  424. 

So  a  prirol  gift  of  lai'ds  bv  a  father  to  his  son.  accompanied  with  possession,  and 
followed  bv  tbf  son's  making  improvements  on  the  land,  is  valid,  notwithstanding 
the  Statut"  of  Frauds.   Sy'fr's  les.  v.  Eckart,  1  Binn.  Rep.  378. 

The  S'atute  of  Frauds  does  not  ext''nd  to  a  contract  executed  on  one  side.  Chap- 
man \'.  Ji  "en,  Kirb.  Rep  399.  Clark  v.  Broivn,\  Roof  s  Rep  77.  Ives -v.  Gilbert, 
ibid  S9  JVoyes  v.  JSInor,  ibid.  142.  Rail  v.  Rotvley,  2  RooVs  Rep.  151.  Ptnneyy. 
Pimiev.ihid  191 .  Chittington  v.  Fo-ailer,  ibid.  387.  Doioney  v.  Hotchkiss,  i  Day^s 
Rep.  225. 

The  payment  of  the  consideration  money,  possession,  and  making  improvements, 
take  a  case  out  of  the  Stfitnte  of  Frauds,  and  will  nntitle  the  party  to  a  decree  for  a 
specific  performance.   Wetmore  v.  White,  1   Caine.'s''  Cas.  87. 

An  actual  rlellvery  of  goods  or  a  part  of  them,  is  not  always  required  bT  the  Sta- 
tute of  Fiiinds,  but  a  virtu.il  or  constructive  deliverv  mav  be  sufficient.  These  cir- 
cumstances which  ought  to  be  held  tantamount  to  an  actual  delivery,  ought  how- 
ever to  be  so  strons"  and  ur,eqnivocaI  as  to  leave  no  doubt  of  the  intent  of  the  parties. 
An  agreement  with  the  vendor  about  the  storage  of  goods,  and  the  delivery  hv  him 
of  the  export  entry  to  the  Rgent  of  the  vendee,  were  held  not  to  be  sufficiently  cer- 
tain to  amount  to  a  cnnstrnciive  delivery,  or  to  afford  an  indecision  of  ownership. 
Sailey  et  al.  v    Op-den  et  al.  3  Johns.  Rep.  394. 

Where  the  vendors  required  of  the  vendee  approved  endorsed  notes,  which  was 
agreed  toby  the  agent  of  the  vendee,  it  seems  that  the  sale  is  not  complete  until  the 
principal  or  vendee  himself  has  assented  tn  the  giving  of  endorsed  notes  and  the  qb- 
dorsers  have  been  named  and  approved,  ibid. 

A  contract  with  a  mortgagor  of  lands  to  satisfy  a  mortgage,  is  not  a  contract  for 
the  sale  of  lands,  or  of  any  interest  in  or  concerning  the  same,  so  as  to  be  within  the 
Statute  of  Frauds.  Owen  v.  Estes  et  al.  5  Mass.  Rep.  330. — Am.  Ed. 


WRITTEN  CONTRACTS. 


319 


reduced  into  writing  ;  and  although  the  promise  be  to  pay  the  ch.  it.  s.  i, 
debt  of  another,  and  also  to  do  something  else,  still  no  action    Statute  of 

is  maintainable  on  it  :(1)  but  if  it  plainly  appear  that  the  person  ' 

promising  intended  that  he  for  whose  use  the  articles  were  si'p-(i)  ciiattrT; 
plied  should  never  be  charged  with  ihem  by  the  person  of  whom  Becket,  7T. 
they  were  bought,  and  the  creditor  never  considered  such  third    *^^' 
person  as  his  debtor,  a  parol  promise  is  binding,  for  there  is  no 
debt,  default,  or  miscarriage  in  the  third  person. 

In  these  cases  it  will  often  be  very  important  to  see  to  whom 
credit  was  originally  given  by  the  seller  of  the  goods  ;  and  though 
his  books,  or  the  bill  of  parcels,  cannot  be  evidence  for  him,  yet 
if  he  originally  charged  the  third  person,  that  will  be  strong 
evidence  against  him  :  Where  the  books  are  in  possession  of 
the  plaintiff,  notice  should  be  given  to  him  to  produce  them,  that 
they  may  be  read  on  the  part  of  the  defendant,  or  parol  evidence 
given  of  their  contents,  if  he  is  not  made  debtor  in  them; 

On  a  promise  to  be  answerable  to  ^.  for  any  goods  he  had  or 
might  supply  B.  with,  to  the  amount  of  100/.  the  Court  of  King's 
Bench  held  that  the  person  making  it  remained  liable  till  he  gave 
notice  that  he  would  be  no  longer  answerable,  although  goods 
to  the  specified  amount  had  been  delivered  and  paid  for  ;(2)  but  (2) Merle  v. 
where  the  promise  was  to  guarantee  the  payment  to  the  extent  c^mpb.^is. 
of  60/.  at  quarterly  payments,  bill  two  months,  for  goods  to  be  'viasonT^. 

I  J     V  J    X  •       J  ^    X      u  .        •  PritcLard,  lb. 

purcnased,  it  was  determined  not  to  be  a  continuing  guaran-436. 
tee -,(5)  and  if  the  promise  be  to  guarantee  a  bill  fur  a  given 

.  *  ®  (3)  Melville 

amount,  the  party  will  not  be  liable  to  that  extent  on  a  bill  given  r,  Haydon, 
for  a  larger  sum.(4)  3  B  &  A  593. 

If  an  agent  buy  goods  at  an  auction,  and  do  not  name  his  (4)  Phillips  7;, 
principal  ;(5)   or  an  auctioneer  employed  to  sell  goods  by  the  ;^^^'"^'''2Qg 
creditors  of  the  owner,  when  the  landlord  enters   to  distrain, 
promise,  in  consideration  of  his  desisting  to  pay  the  rent  ;(6)  or  ^1),^^^™°" ^'* 
a  third  person,  in  consideration  of  the  holder  of  any  commodity,  Burr.  i92i. 
on  which  he  has  a  lien,  delivering  it  up,  promise  to  pay  the  va-  /r)  wiiiiams 
iue  ;(7)  in  all  these  cases  no  written  memorandum  is  necessary; '^^  *-«'*P'^fj  It* 
for,  in  the  first  case,  no  credit  at  all  was  ever  given  to  the  third 
person  ;  and,  in  the  others,  there  is  an  entire  new  consideration,  (^)^^*'''"S 
detrimental  to  the  plaintiff,  and  moving  from  him  to  the  defen- 2  East,  325. 
dant,  and  on  which  the  third  person  could  not  be  sued.     Again, 
whenever  a  person  is  under  a  moral  obligation  to  make  satis- 
faction for  a  benefit  which  another  has  actually  received,  and  he 
promises  to  pay  it,  the  promise  is  binding  upon  him,  though  not 
reduced  into  writing  :  as  when  a  pauperis  taken  ill,  and  an  apo- 
thecary sent  for  without  the  knowledge  of  the  overseers,  who  atr 


320  ASSUMPSIT. 

Part.  II.     tends  anil  cures  her,  and  the  overseers  promise  to  pay  his  bill. 
Frauds?     *^"^  promise  is  binding  upon  them;(l)  and  even  if  one  of  the 

overseers  only,  who  has  the  management  of  the  poor,  make  the 

(I)  Watson  v.  promise,  both  overseers  are  liable. (2) 

Turner  and         Cases  where  no  debt  was  due  from  the  third  person,  and  where 

another,  Bui.  iri  •  •■,. 

N.  P.  281.  there  was  no  detault  or  miscarriage  bj  him  as  actions  of  tort,  tres- 
(21  S  S  Bui  P^**'  ^^  *'^^  ''^^'  ^'^  "^^^  within  the  Statute  ;  and  if  in  such  case 
N.  P.  129.  a  third  person  verbally  promise  to  pay  the  plaintiff  a  sum  of  mo- 
fj^Readr  ^^^''  '"  consideration  of  his  withdrawing  the  record,  it  will  be 
Nash,  1  Wils.  binding.uS) 

"^  ^'  The  sale  of  standing  grass,(4)  or  growing  turnips, (5)  has  been 

(4)  Crosby  v.  held  to  be  within  the  Statute,  as  conveying  an  interest  in  the 
6Eas\  602.'  ^^.nd,  (though  a  different  decision  had  formerly  taken  place  as  to 
,  ^„  the   sale  of  standing  timber  ;{'6)  but  where  potatoes  were  com- 

(SlEmmer-  /    n  i     i  i  i  i        i  i 

son  xt.  Hceiis,  pletely  grown, (7)  and  the  contract  was  that  the  purchaser  should 
2  Taunt.  38  ggj-  them  and  take  them  away  immediately,  the  Court  consider- 
(6)  Vide  Bui.ed  them  as  a  mere  chattel,  and  that  therefore  no  written  con- 
^;^'.^^'^'     tract  was  necessary.ffZ) 

182.  That  part  of  the  clause  which  makes  void  parol  promises,  m 

(71  Parker  w  c<>nsideration  of  marriage,  was  at  one  time  thought  to  affect  mu- 
Staniland,       tual  promises  to  marry  ;( 8)  but,  by  later  decisions,  it  has  been 
^^''     "'  held  to  extend  only  to  those  cases  where  a  father  or  other  per- 
(8)  Phiipot  V.  son  promises  to  pay  a  sum  of  money  by  way  of  portion  to  the 

Wallet, 3Lev.  .     -i  , rx  ,    \ 

6;j       '  person  marned.(9  i(f) 

The  next  provision  requiring  a  memorandum  in  writing,  where 
Baker,  "'  the  contract  is  not  to  be  performed  within  a  year,  does  not  ap- 
1  Stra.  34.  pg^,.  ^q  afford  much  room  for  doubt  or  discussion  ;  the  obvious 
intention  of  the  Legislature  was,  that  those  agreements  which 
were,  in  all  events,  to  remain  unperformed,  or  not  fully  com- 
pleted for  a  year  together,  should  rest  upon  some  better  evidence 
than  the  frail  memory  of  man,  and  such  cases  will  not  be  taken 

(</)  Vide  Whipple  v.  Foot,  2  Johns.  Rep.  418.  JVewcomb  et  al.  v.  Hamer,  ibid, 
421,  n.  Bosttvick  v.  Leach,  3  Duy^s  Rep.  476. — Am.  Ed. 

JMariiage  contracts. 

(e)  A  parol  promise  by  a  faih'^r  to  his  daughter's  husband  before  the  marriage,  is 
a  sufficient  consideration  to  sustain  a  wriit'  -^  agreement  made  after  the  marriage,  if 
such  agreement  be  otlierwlse  luffici'  nt  utidt^r  the  Statute  of  Frauds.  So,  also,  if  the 
marriiige  be  had  at  the  fatht  r's  request.  Argeiibri^lU  v.  Campbell,  et  ux  3  Hen.  lif 
Munf.  Rep.  144. 

A  promise  in  consideration  of  marriage,  must  be  in  writing;  and  if  not  reduced 
to  writing  before  the  marriage,  the  detect  caijtiot  afterwards  be  supplied,  so  as  to 
impair  the  intervening  rights  of  third  persons.  Reads  v.  Livingston  et  al.  3  Johm, 
Ch.  Rep.  481.— Am,  En. 


WRITTEN  CONTRACTS.  gg^ 

out  of  the  Statute,  though  the  contract  has  been  in  fact  partly  Ch.  ii.  s.  i. 

performed  within  that  time.(l)C/)     But  where  it  is  from  the  ^p.^^^j"*" 
nature  of  the  promise  itself,  uncertain  whether  it  will  be  per- 


formed  within  a  year  or  not,  it  has  been  held  not  to  be  within  (i)  vi<ieBoy- 
the  Statute,  though   the  contingency  does  not  in  fact  happen ''' "  -^^  Di  um- 
till  after  that  time  ;  and  therefore,  u  a  man  promise  to  pay  a  sum  fc:.,,st,  U'^. 
of  money  when  a  ship  arrives, (2)  or  when  he  shall  be  married,(3)       ^ 
or  (o  leave  it  at  his  death, (4^  these  promises,  if  founded  on  good  mous,  i  Saik. 

•  •   •  "89 

consideration,  are  binding,  though  not  in  writing. 

The  seventeenth  clause,  viz.  that  relating  to  the  sale  of  goods  (3)  Case  cited 
of  the  value  of  10/.  and  upwards,  has  given  rise  to  the  most  dis-  ^'^t;oai.  Kep, 
cussion,  and  some  contradictory  cases  are  to  be  found  upon  it. 
There  seems  to  be  no  reason  for  confining  this  clause  to  con- j,,|j[j,^",'°3  *• 
tracts  to  be  performed  immediately,  and  excluding  executory  Bur.  1278. 
contracts  from  the  operation  of  it ;  yet  such  a  construction  at  one 
lime  prevailed  in  Uestminsler  Hall;  and  if  the  thing  sold  were 
to  be  delivered  at  a  distant  time,  it  was  held  not  to  be  within 
tbe  Statute.(5)     But,  by  a  modern  decision,(,6)  this  distinction  (5)  yifle  Si- 
has  been  overruled,  and  this  clause  of  the  Statute  is  now  held  to  |"^"  ^^  Metj^ 
extend  to  all  contracts  for  the  sale  of  goods  of  the  value  of  1 0/- 2So.' 3  Bur. 
or  upwards,  whether  they  are  to  be  delivered  immediately,  or  at'^-'-^'- 
a  future  time.(g-j     It  is  still  held,  that  where  work  is  to  be  done,  (O)  Rondeau 
as  where  a  chariot  is  to  be  built,(7)  this  not  being  a  mere  con-  [j^gi^^'i^'  |g 
tract  of  sale,  but,  in  some  degree,  founded  upon  the  work  and  la- 
bour to  be  performed,  is  not  within  the  Statute.  OsiomT^" '^^ 

Another  case  was  also  determined  before  that  of  Rondeau  v.  i  Su-a.  506. 

Wyatt,  in  which  it  was  held,  that  where  an  agreement  was  to  sell  G,ovestt. 

corn  by  measure,  which  was  unthrashed  at  the  time  of  the  agree-^"ck,  3  M, 

ment,  it  was  not  within  the  Statute. (8)     Lord  Loughborough, 

in  delivering  his  iudement  on  the  case  of  Rondeau  v.  ^f  i/««,  dis-(^)p3>'*o"^• 
c>  j       ?>  ^  Andrews, 

tinguishes  this  case  from  the  one  then  before  the  Court,  by  ob-4  Bur.  2101. 
serving  that  some  work  was  to  be  done  to  the  corn ;  but  he  ad- 
mits this  to  be  a  very  nice  distinction  ;  and  it  must  be  observed, 
that  at  the  time  this  case  was  determined,  the  general  received 
opinion  was,  that  all  executory  contracts  were  excluded  from 


(/)  Moore  v.  Fox,  10  Johns.  Rep.  244. — Am  Ed. 

{g)  In  ihe  case  of  Beimct  \.  Hull,\0  Ja/ms.  Rep.  064,  the  Supreme  Court  of 
JV*ew  Torfc  say,  "the  15ih  sec.  of  our  Stat.  (sect.  10,  c.  4i,)  and  wliich  is  the  same 
as  thi  17th  sect.  o(  the  English  Slat,  applies  as  well  to  txeciitory  as  to  other  con- 
tracts; and  the  decisions  of  tin;  English  Courts  ou  this  point  in  Rondeau  v  Wyatt^ 
(2  H.  Bl.  63,)  and  in  Cooper  v.  E'aten,  (7  T.  Hep.  14,)  contain  the  sound  and  just 
construction  ol  the  Statute. — Am.  Ed. 

Tt 


333  ASSUMPSIT. 

Fait  II.     the  operation  of  tlie  Statute  ;  and  the  case  appears  to  have  been 

Frauds"      principally  decided  on  this  ground. 
.^_____       In  cases  which  are  within  the  operation  of  the  Statute,  and 
(i)Aiexan-    where  the  terms  of  it  are  not  complied  with,  the  contract,  while 
b'^'-'i'S"™'    it  remains  unexecuted,  is  void  altogether  ;(1)  neither  the  buyer 
Bla'c.  -^0.        nor  the  seller  can  enforce  the  performahce  of  it :  and  even  if  con- 

(2)  Vide  cases  ^"^^^^^  i"  ^"  answer  to  a  bill  in  equity,  still  if  the  Statute  be  in- 
cited in  Ron-  sisted  upon,  that  Court,  it  should  seem,  from  the  majority  of  the 
atT'and  1  ^  cases,(2)  will  not  decree  a  performance  ;  and  it  is  settled  that 
Fonbi.Treat.no  action  at  law  can  be  maintained  on  such  admission  :(3)  but 

Fci   168 

where  the  agreement  has  been  executed,  the  Statute  does  not 

(3)  Rondeau  apply  ;  and  therefore  where  a  tenant  agreed  with  his  landlord, 
ubi  supra.'  that  if  he  would  accept  another  person  as  tenant  in  his  place, 
Gnffiihst'.      iig  vvould  pay  him  40/.  out  of  100/.  which  he  was  to  receive  from 

Young,  I'i  »     -' 

East,  513.  such  person  for  the  good-will,  and  in  fact  received  the  100/.  from 
him,  he  being  cognizant  of  the  agreement,  the  Court  held  that 
the  40/.  might  be  recovered  by  the  landlord  as  money  had  and 
received  to  his  use. 

The  weighing  of  goods  in  the  presence  of  the  buyer's  servant 

(4)  Simon  v.  has  been  held  a  sufficient  delivery  within  the  17th  clause, (4)  and 

"n*„. «     .,1.:  */ 

where  ^5.  bought  a  stack  of  hay  standing  in  B's  yard,  and  after- 
wards sold  a  part  of  it  to  C.  who  took  such  part ;  this  was  held 
sufficient  evidence  of  the  delivery  to  .5.  to  take  the  case  out  of 
(a)Chapiin     ^|^g  Statute. (5^     So  where  goods  are  ponderous,  and  not  ea- 

1'.  Rogers,  ,  or' 

1  East,  192.  sily  moved,  the  delivery  of  the  key  of  a  warehouse  where  they 
f6^  1  East  ^'^  ^^^'^  ^^  sufficient.(6)(/i)  And  if  a  man,  carrying  on  the 
194.  distinct  business  of  a  livery  stable  keeper  and  dealer  in  horses, 

(7)  El     •      I'G'Tiove  a  horse  which  he  has  sold,  to  the  stables  kept  for  livery 
•y.  Stone,        horses,  on  tiie  purchaser  desiring  him  to  keep  him  at  livery,  this 
aaat. -i    .  ^|g^  ^^^^  been  deemed  sufficient.(7X0     Again,  where  the  goods 

(h)  Vide  Wilkes  et  al.  v.  Ferris,  5  Juhns.  Rep.  335. 

Where  qn  a  sale  of  lan(l,tiie  vendc-e  agrffS  to  purchase  certain  ponderous  articles 
on  the  premises,  and  then  enic  rs  into  possession  of  the  land,  tlie  .irtides  sold  still  re- 
maining upon  It ;  this  is  a  sufficient  delivery.  De  Ridder  v.  M'Knight,  14  Do.  294- 
—Am.  Ed. 

{i)  Where  on  the  sale  of  cattle  no  earnest  money  was  paid,  nor  any  rnemoran- 
duna  in  writing  made,  and  the  caitle  were  to  remain  in  the  possession  of  the  vendor? 
at  the  risk  of  the  ven*Je<  ,  until  he  called  for  them,  and  the  vendee  afterwards  came 
and  took  them  away,  without  saying  any  thing  to  the  vendor  ;  this  was  held  a  suffi- 
cient delivery  within  the  Statute  of  Frauds.  Vincent  \.  Germond,\\  Johns.  Rep. 
283. 

The  circumstances  which  are  to  be  tantamount  to  an  actual  delivery,  should  be 
so  strong  and  unequivocal,  as  to  take  away  all  doubt,  as  to  the  intent  and  under- 
standing of  the  parties.  Bailcii  et  al.  v.  Ogd^net  al.  3  Jahns.  Rep.  394. — Am.  Ed 


]NIot  V05,  ubi 
supra 


WRITTEN  CONTRACTS.  3^3 

are  lying  at  a  distant  place  in  the  custody  of  a  third  person,  and  Ch  ii.  s.  1. 
the  seller  writes  a  note   to   such  third  desiring  him  to  deliver    ^p,!^^^!,"' 
them  to  the  buyer,  this  also  is  suflicient  evidence  of  a  delivery  ________ 

to  him  to  enable  him  to  maintain  an  action  against  the  seller,  if  (i)  Seariei'. 
he  afterwards  revoke  that  order.(l)     It   matters  not  how  small  ^'^'=^Xt'?i 
the  quantity  delivered  is,  if  it  be  considered  by  the  parties  asCus.  598. 
part  of  the  thing  sold.     Thus,  where  sugars,  while  under  lock  in 
the  King's  warehouse,  were  advertised  for  sale,  and  after  they 
were  weighed,  a  sample  of  half  a  pound  weight  was  taken  from 
each  hogshead,  which  sample  was  produced  at  the  sale,  and  de- 
livered to  and  accepted  by  tlie  purchaser,  as  part  of  his  purchase, 
to  make  up  the  quantity  marked  as  weighed  at  the  King's  beam, 
this  also  was  held  to  be  a  sufficient   delivery.(2)     But  to  make  (2)  Hmde  t^. 
a  delivery  of  part  of  the  goods  within  the  Act,  it  must  appear  ^^^'^^  g"g^' 
that  what  was  delivered  was  considered  by  the  parties  to  be  part 
of  the  thing  sold ;  and  therefore  a  delivery  of  a  sample  of  corn, 
when  it  appeared  that  such  sample  was  not  considered  as  part 
of  the  corn  sold,  w^as  held  not  to  take  the  case  out  of  the  Sta- 
tute.(3)     In  all   the  above  cases  the  purchaser  had  done  some  (3)  Cooper 

.-.,..  .  ~  .  II-  1 J      u       T).  Elton, 

act  maniiesting  his  intention  01  accepting  the  thing  sold;  but 7 t.  Rep.  U. 

where  a  sale  of  tares,  part  of  the  vendor's  stock  remaining  at 

home,  took  place  at  a  public  market,  which  it  was  agreed  should 

remain  in  the  vendor's  possession  till  called  for,  and  the  agent 

of  the  vendor  in   his  return   home   measured  out  the  quantity 

agreed  for  and  put  them  apart  for  the  purchaser,  this  was  holden 

to  be  no  delivery.(4)  (4)  Howe 

One  other  observation  only  remains  to  be  made  on  this  Sta- 33.61  A.  321, 
tute,  and  that  is,  as  to  what  shall  be  deemed  a  sufficient  note  or 
memorandum  in  writing :  As  to  this  it  has  been  held,  that  sales 
of  g"oof?s  at  an  auction  are  not  within  the  Statute,  for  that  the/gNyi.igj 
entry  of  the  buyer's  name,  &c.  by  the  auctioneer,(5)  is  a  suffi-  i-'-i'st,  558. 
cient  memorandum  of  the  contract,  and  that  he  is  the  agent  of(o)  Simon  w. 
both  parties  authorised  to  make  it.(6XA)  M  uvos,  ubi 


supra. 


Fomi  of  note  of  memorandum. 

(k)  It  has  been  decided  in  Connecticut,  \h'Al  an  adv>_rtiscment  that  lands  at-p  to  be 
aoM  at  public  «uclion,  with  the  terms  of  the  sale,  &c.  is  a  sufficient  memorandum  in 
writing  within  ihe  Statute  of  Frauds  to  render  the  sale  vafid.  Uobby  v.  Findi  et  ul. 
Kirb    Rep.  14. 

So  a  letter  under  the  hand  of  the  party  takes  an  agreement  reiatin;.;  to  lands  out 
of  the  Statute.   Canes.  IVorthin^ion,  I  Root^s  Re/)    IT'i. 

AVhere  one  wrote  his  name  and  affixed  his  seal  in  Olmh  to  be  filled  up  :tfl<M-wards 
by  another,  it  was  held  nr>(  to  be  a  note  in  writing  within  the  Statute  ot  Frauds. 
Jackgon  ex.  d.  IJoijdv,  Titus,  2  Johns.  Rep.  430. 


ASSUMPSIT, 


Part  II.  But  in  the  case  of  a  safe  of  lands{\ )  by  auction,  or  otherwise, 

^F.*"uiis^    the  contract  is  not  binding,  unless  signed  by  the  parties  them- 
selves, or  their  agents  speciallj   authorised  for  that  purpose,(2) 


{i)Sia..sfi.;i.  which,  it  has  been  said,  a  me;e  auctioneer  employed  by  the  sel- 
V.  Joi.nsm,  ]gp  pouij  not  be  ;  but  in  a  subsequent  case.  Lord  Eldon  ex- 
lOl!'*  pressed  a  doubt  on   this  point  ;{o)  and  the  Court  of  Common 

Pleas,  after  time  taken  to  consider  of  the  question,  held,  that  a 


3)  Coles  V. 
eci'llnck, 


(2)  Walker  ..  ,        ,  •  .      .  •  .• 

T^.  Consiabi  ,  person  by  bidding  aloud  constituted  the  auctioneer  his  agent 
*  ^*'*'- **^'"to  write  his  name  down  as  the  purchaser,  and  thereby  make  a 
mas-erw.  contract  in  his  behalf:  so  that  it  is  now  settled  that  the  agent 
Ves'344^       need  not  be  authorised  in  writing.(4)(Z) 

9  V'cs,  jun.  jf,  aj,  agreement  for  the  sale  of  lands,  it  was  held  that  the  conside'-ation  for  the 

^'^"'  promise  as  well  as  the  promise  its^lt,  must  be  in  writing.    Sears  v.  Brink,  3  Johns. 

(4)  Erainer-    -??'?/'•  210.     Violett  v.  Pulton,  5  Crunch's  Rep.  142. 

son  V.  Heelis,      An  entr)'  made  b)  the  vendor  of  gowds  in  his  book  of  sales  of  the  name  of  the  pur- 
2  Taunt.  38.    chaser  and  the  terms  of  the  contract  of  s:ile,  which  was  lead  10  the  agent  of  the  vendee, 
vho  mafle  the  purchase  and  assented  to  by  him  as  correct,  was  held  notX.0  be  a  suffi- 
cient memorandum  in  writing  within  the  Statute  of  Frauds,  it  not  being  signed  by 
the  party  to  be  charged,  or  by  his  agent    Builey  et  al.  v.  Ogden  et  al.  ibid.  394. 

Qiiere,  Whether  the  vendor  is  bound  by  such  a  raeraoraDdum,  so  that  the  vendee 
could  enforce  the  contract  against  him    ibid. 

A  letter  promising  to  make  a  deed  for  a  tract  of  land  "  according  to  contract,''^ 
is  a  sufficient  raemorandum  or  note  in  writing,  notwithstanding  the  terms  of  such 
contract  be  not  mentioned  ;  if  the  party  claiming  the  conveyance  can  prove  by  the 
testimony  of  one  witness  what  price  was  agreed  to  be  paid  for  the  land.  Johnson  v. 
RonakVs  adm.  4  Munf.  Rep.  77. 

A   memorandum,  signed   by  the  defendant  only,  whereby  he  agreed   to  deliver 
a  quantity  of  cotton,  t^kes  the  case  out  of  the  Statute  of  Frauds,  though  not  signed 
by  the  purchaser.  Douglass  &  Co.  v.  S/jears,  2JVott  Sjf  M'  Cord's  Rep.  207. 
/  The  memorandum  must  state  the  contract  with  reasonable  certainly,  although  its 

form  is  not  raateriHl,  so  th^t  its  substance  can  be  made  to  appear  and  be  understood 
from  the  w riling  itself,  without  recourse  to  parol  proof.  Bailey  et  al.y.  Ogden, 
et  al.  3  Johns.  Hep.  394  Harkhurst  et  al  v.  Van  Cortland,  1  Johns.  Ch.  Rep.  273. 
S.  C.  14  Johns   Rep.  15.  Meel  et  al  v  Radcliff,  13  Do.  297. 

Provided  that  the  name  he  inserted  in  such  a  manner,  as  to  have  the  effect  to  au- 
thenticate ihe  instrument,  the  requisition  of  the  act  respecting  the  signature  is  com- 
plied with  ;  and  it  iloes  not  inattT  in  what  part  of  the  instrument  the  name  is  fouSd, 
nor  that  the  ch'  istian  name  is  omitted.  Ogilvie  v.  Foljambe,  3  Merivale's  Rep.  53. 
A  niimtnandimi  in  writing  of  the  sale  of  lands,  to  be  valid  within  the  Statute, 
must  nr.t  o'  ly  lie  signed  by  the  party  to  he  charged,  but  must  contain  the  essential 
terms  of  the  contract,  expressed  with  such  clearness  and  certainty,  that  they  may, 
b:-  undi-rst'od  frorr.  the  writing  iiself,  or  some  otherjpaper  to  which  it  refers,  without 
the  nec<  ssif\  of  resoi  ting  to  parol  proof,  Parkhurst  etal.  v.  Van  Cortland,  1  Johns. 
Ch.  Rep.^TS.—Aii.Y.B. 

(/)  Writing  the  pui  chaser's  name  as  the  highest  bidder  on  the  memorandum  of 
sale,  by  the  auctioneer,  inimei'i;itely  on  receiving  the  bid,  and  knocking  down  the  ham- 
mer, is  a  suffieitnt  signin;.;  of  the  contract  w'thin  the  Statute  of  Frauds,  S3  as  to  bind 
the  purchaser.  Jil'  Comb  v.  Wright,  4  Johns.  Ch,  Rep,  659, 


WRITTEN  CONTRACTS.  gg^ 

No  particular  form  is  required,  it  is  sufficient  that  a  note  of  ch.  ii.  s.  i. 
the  agreement  is  made  in  writing  ;  and  therefore  if,  on  the  treaty  ^p**'"'^"' 
of  marriage  with  the  daughter  of  a  man,  he  write  a  letter  wherein 


he  says  he  will  give  her  such  a  sum  of  money  as  her  portion  ;(1)  /,\  yj^j^ 
or  a  mother  who  has  agreed  to  give  a  sum  of  money  as  a  portion  liiosse, 
with  her  daughter,  sign,  a    a  witness,  articles  made  with  her  ap-  Moore  w^    ' 
probation  for  settling  it  ;(2)   either  of  these  acts  is  sufficient  to  •*"''»  ^  Vern. 
bind  them  :  and  if  the  seller  of  goods  above  the  value  of  10/.  de- 
liver to  the  buyer  a  printed  bill  of  parcels,  "  Mr.  Jl.  boughtof  5.(2)^Weihford 
&c."  this  is  a  sufficient  signature  by  him,  though  he   does  not  i  Wils.  lis. 
ton7e  his  name.C3)vm)  ,_,c     , 

^  -^  _        _  (3)  Sanderson 

But  a  memorandum  made  by  the  buyer's  clerk  in  his  book  as  t'.  Jackson, 
follows,  viz.  "  Bought  of  W.  P.  20  puncheons  of  treacle,  37s.  to  ^^3^"''  ^  ^''' 
be  delivered  by  10  Bec.'^  and  signed  by  the  seller,  is  not  suffi- Schneider 
cient  to  bind  him,  because  it  does  not  appear  by  the  memoran-o  ]vi.°&s.' 
dum  to  whom  the  treacle  was  sold  ;(4)  and   for  a  like  reason  286,  S.  P. 
•where  a  printed  prospectus  was  delivered  out  for  a  set  of  prints  (4)  charapion 
descriptive  of  scenes  in  the  plays  of  Shakespear,  and   a  book  ^\f '"'^'^^''' 
was  opened   intituled   "  Shakespears   subscribers,   their  signa-  n.  Rt^p.  iJ52. 
tures,"(5)   in  which  the  defendant  signed  his  name,  but  which,  ,„     ... 

,,,.,  ^  ,  °.  ,,,,.  (5)Boydellt7. 

book  did  not  reter  to  the  prospectus,  it  was  held  the  signature  Drummond, 
in  the  book  was  not  sufficient  to  take  the  case  of  the  Sta-  ^^  ^^^'"  ^*^' 
tute.(n) 

So  the  circumstance  of  the  defendant  writing  a  letter  to  the 
plaintiff,  stating  that  the  article  sent  was  not  worth  above  so 
much,  and  therefore  returning  it  to  him,(6)  does  not  amount  ei-  (6)  Kent  v. 

Huskinson,  S 
^    Bos.  &  Pul. 

233. 
A  shIp  of  land  by  the  Sheriff  under  an  execution,  is  a  sale  within  the  Statute  of 
Frauds,  and  requires  a  deed  or  iinle  in  writing  to  pass  the  estate.  Simonds  v.  Catjin, 

2  Caines''  Rep.  CO.    Jackson  ex.  d.  Grutz  v.  Catlin,  2  Jolms   Rep.  '248. — Am.  Ed. 

(m)  Vide  Memtt  et  al.  v.  Clason,  12  Johns.  Rep.  102.  The  exrs.  of  Clason  v. 
Bailey  etal.  14  i>o.  484. 

A  letter  from  a  mother  to  her  son,  beginniti":,  "  .My  dear  Robert,''''  and  conclud- 
ing "  Jowr  a^rt«on«ie  mo/^ec,"  is  not  signed  so  as  to  constitute  a  binding  agree- 
ment on  the  part  of  the  mother,  within  the  intent  of  the  Statute  of  Frauds.  It  is  not 
enough  to  itlentify  ;  there  must  be  signing,  either  by  the  signature  of  the  name,  or 
something  intendtd  by  the  writer  as  equivalent,  such  as  a  mark  by  a  markman. 
Selby  V.  Selby,  3  Merrivale's  Rep.  2.— Am.  Eb. 

(w)  An  entry  inade  by  the  vendor  of  goods,  in  his  book  of  sales,  of  the  name  of 
the  purchaser  atid  the  terms  of  the  contract  of  sale,  which  was  read  by  the  agent  of 
the  vendee,  who  i'  ade  be  purchase,  and  assentrd  to  by  him  as  correct,  was  held 
not  to  be  a  sufficient  memorandum  in  writing,  within  the  Statute  of  Frauds,  it  not 
being  signed  bv  the  party  to  be  charged  or  by  his  agent.    JJailcy  et  at.  v.  Ogdeii, 

3  Johns.  Rep.  394.— Am.  Ed. 


336  ASSUMPSIT. 

Part  II.     ther  to  a  note  in  writing  or  an  acceptance  of  the  goods,  so  as  to 

Frauds"     ^^^^  ^^^  ^^^^  ^"^  ^^  *'^*^  Statute. 
„______      Another  case  also  lately  occurred,  where  the  plaintiff's  rider, 

CoopeiTj.  calling  on  the  defendant,  entered  in  his  order  book  these  words. 
Smith,  15  ^j2,  «  19  Feb.  181 1.  OiJohn  Smith,  G4/.  (alluding  to  money  then 
paid  by  the  defendant ;)  Do.  40  of  3.58/"  which  was  explained 
to  mean  that  the  defendant  had  ordered  forty  sacks  of  flour,  call- 
ed thirds,  at  58s.  a  sack..  This  was  not  signed  by  the  defen- 
dant, though  read  to  him  by  the  rider,  and  therefore  the  con- 
tract was  held  to  be  void.(o} 

But  in  a  subsequent  case,  where  an  attorney-  wrote  a  letter  to 
Baternan        another  attorney  in  these  terms,  viz.  "  The  bearer  D.  fV.  has  a 
15  East  '^72.  sum  of  money  to  receive  from  a  client  of  mine  some  day  next 
week,  and  I  trust  you  will  give  him  indulgence  till  that  day, 
when  I  undertake  to  see  you  paid  ;"   was  held  to  be  sufficient, 
though  it  was  objected  on  the  behalf  of  the  defendant,  that  nei- 
ther the  sum  nor  the  person  to  whom  due  was  mentioned;  and 
:;,, ,  that  if  parol  evidence  were  admitted,  the  plaintiff's  attorney 

■     '  might  apply  this  letter  to   a  debt  due  to   himself,  or  any  other 

person,  from  D.  IV.  and  to  any  amount. 

It  was  a  few  years   since  determined,  that  in  cases  falling 
within  the  4th  section  of  this  Act,  both  the  consideration  and  the 
promise  must  be  set  down  in  writing,  and  signed   by  the  party 
(i}Wain-ti.    to  be  charged  therewith. (I)     This  doctrine  was  for  some  time 
East  10.*       much  doubted  by  the  profession,  and  the  present  Lord  Chan- 
cellor expressed  his  dissent  from  it  in  two  cases  ;(2)  and  in  se- 
]Vlinet,i4       veral  other  cases  the  Judges  have  studiously  avoided  giving  an 
Ves.  190.       opinion  upon  it:   but  three  cases<3)  have  lately  occurred  in  the 

liiX  pai'te  r  r  ^  ^ 

Goidam,i5    Courts  of  Exchequer,   King's   Bench,  and  Common  Pleas,  in 

\es.  'i86.       ^vhich  the  Judges  of  those  Courts  unanimously  confirmed  it.  But 

(3)  Linn  f.      in  the  case  mentioned  in  the  ITth  clause,  it  is  sufficient  if  the 

kin's  7''.  R."v-   "ote  signed  by  the  person  to  be  charged  with  it   state  the  pro- 

noids,  c.  B.    mise,  the  consideration  need  not  be  mentioned. (4)     And  in  the 

Geo.' 4.'  Fell  Other  case  it  is  not  necessary  that  there  should  be  an  undertak- 

Law.  Mere,    i^g  qu  the  part  of  the  seller  to  deliver  the  goods;   therefore  a 
Guar,  36.  »        .  '  ,  ,  ^  ,  ^      r  1 

paper  in  these  words,  "  I  guarantee  the  payment  ot  any  goods 
(4)Egerton     ^y^ich  .4.  shall  deliver  to  5."  is  sufficient.f'sXp) 

V.  Matthews  ^    '^^•' 

6  East,  307.      

,_>  o.    I.  fo)  The  Statute  of  Frauds  requires,  in  certain  contracts,  a  memorandum  to  be 

(.■5 1  Sfa'it  t'.         ^  ' 

Lill    1  Camp.  *'g"'''' by  the  parties  to  hi' charge<l ;  if  there  are  acts  to  be  done  by  both  parties, 

'24'2.  9  East,     and  the  one  who  is  to  perform  a  principal  part  signs,  and  it  is  accepted  by  the  other 
348.  parly,  there  can  exist  no  doubt,  but  that  such  a  contract  would  be  mutually  obliga- 

tory.   Ro^et  V.  Merritt  et  al.  2  Cables''  Rep,   117.    Vide  Ballard  v.  Walker,  3 
Johns.  Cas.  60.— Am.  Ed.     i 

(p)  Johnson  v.  Ronald,  4  Munf,  Rep.  77. — Aji.  Ed. 


WRITTEN  CONTRACTS.  3^^ 

Ch.  II.  s.  1. 

Evidence  in  actions  on  hill  of  exchange  and  promissory  notes,    exchange  &c. 

Another  contract,  which,  by  the  custom  of  merchants,  and  the 
recognition  of  it  by  our  Courts  and  the  Legislature,  must  be  in 
writing,  is  that  by  bills  of  exchange  and  promissory  notes.(5') 

(9)  Marshall  C.J.  in  ihe  case  of  Grcmt  v.  JVayler,  4  Crancli's  Rep.  236,  re- 
marks on  this  Statute,  "  already  have  so  many  cast's  been  taken  out  of  the  Statute 
of  Frauds,  which  seem  to  be  within  its  letter,  that  it  may  well  be  doubted  whether 
the  exceptions  do  not  let  in  many  of  the  mischiefs  against  which  the  rule  was  in- 
tended to  guard.  The  btst  Judges  in  England  have  been  of  opinion  that  tliis  re- 
laxing construction  of  the  Statute  ought  not  to  be  extended  further  than  it  has  al- 
already  been  carried,  and  this  Court  entirely" concurs  in  that  opinion." 

Promissory  notes  and  bills  of  exchange. 

The  decisions  upon  the  law  in  a  commercial  country,  relative  to  bills  of  exchange 
and  promissory  nates,  are  of  the  highest  importance,  and  although  there  is  some 
discrepancy  among  them,  yet  the  great  and  leading  features  of  that  law  as  settled 
in  the  country  whence  we  derive  our  jurisprudence,  has  generally  been  adhered 
to,  by  the  different  tribunals  in  the  United  States. 

In  Connecticut,  notes  are  treated  as  spt»cialties,  and  not  as  negotiable  instruments, 
and  in  other  of  the  States,  the  effect  of  their  negotiability  is  widely  altered  by  legis- 
lative provisions. 

JMaking  the  note,  its  form,  &c. 

The  endorsee  of  a  bill  of  exchange,  drawn  in  a  foreign  country,  and  Adorsed  by 
one,  who  has  his  residence  there,  is  answerable  only  according  to  the  laws  of  that 
country.  Powers  v.  Lynch,  3  JVlass.  Rep.  77. 

A  note  made  payable  in  foreign  bills,  is  not  a  cash  note,  and  therefore  not  nego- 
tiable. Jones  V.  Fales,  ijllass.  Rep.  '2 15.  Young  v.  Adams,  G  Do.  182.  Storer  v. 
White,  7  Do.  448. 

Kut  a  note  payable  in  York  State  Bills,  or  specie,  is.  Keith  v.  Jones,  9  Johns. 
Rep.  120. 

A.  made  a  note  payable  to  B.  at  a  particular  day  ;  C.  writes  underneath,  " lac- 
kno-u'ledge  myself  holden  as  surety  for  the  payment  of  the  demand  of  the  above  note, 
witness  my  hand,  C."  It  was  held  to  be  a  joint  and  several  promise.  Runt  v.  Adams, 
5  Mass.  Rep.  358. 

In  Vermont,  a  note  deposited  with  arbitrators,  subject  to  their  endorsement  to  the 
amount  of  their  award,  is  void.  Drake  v.  Collins,  I  TyL  Rep.  79. 

A  mistake  in  a  bill  of  exchange,  of  the  christian  name  of  the  drawer,  is  immate- 
rial, if  the  bill  be  presented  to  the  right  person.  Sterry  v.  Robinson,  1  Day's 
Rep.  11. 

In  cases  of  bills  of  exchange  and  notes,  time  is  computed  by  calendar,  and  not  by 
lunar  months.  Leffingwell  v.  While,  1  Johns.  Cos.  99. 

A  promissory  note,  without  words  of  negotiability,  may,  in  an  action  by  the  payee 
against  the  maker,  be  declared  on  as  a  note,  without  the  Statute.  Downing  v. 
Backenstoes,  3  Caines^  T.  Rep.  137.- 

A  note  made  in  France,  but  payable  in  America,  is  valid  here,  though  not  stamped 
according  to  the  laws  of /'»a7ice.    iMdlotu  et  al.  v.  Van  Rensselaer,  1  Johns.  Rep.  93. 

A  promissory  note,  in  these  words,  '*  due  to  the  bearer  hereof ,  3l.  ISs.  ^Od  which 
/promise  to  pay  to  A.  or  order,  on  demaiid,"  is  not  a  note  payable  to  bearer,  but 
must  be  traDst'erred  by  endorsement.  Cock  v.  Fellows,  1  Johns.  Rep.  143. 


3S8  ASSUMPSIT. 

Part  II.          It  is  not  the  intention  of  this  work  to  enter  into  the  whole 

On  bills  of 
exchange, &c. 


Notes  delivered  after  the  time  they  bear  date,  are  valid  only  from  the  day  of  de- 
livery, and  are  to  be  considered  as  drawn  on  that  day.  Lansing  v.  Guine  et  al.  2 
Joh7is    Hep.  300. 

A  negotiable  note  expressed  X.o  ha  for  value  received,  is  a  p'-omise  for  a  legal 
consideration,  although  as  between  the  original  parties,  the  proniissor  may  shew 
that  there  was  no  value  receivt-d.  Thacluer  et  al.  v.  Dinsmore,  5  ^Mass.  Hep  299. 

A  note  of  hand  is  not,  in  Jlldssaclutsett.i ,  entitled  to  gracf ,  unless  it  l>e  mnde  ex- 
prt-ssly  payable  with  grace.  Putnam  et  al.  v.  Sullivan  et  al.  5  Do.  55.  Jones  v. 
Fales,  ibid.  254. 

But  when  payable  "  wiVA^^race,"  these  words  must  have  the  same  construction 
as  is  given  by  the  law  merchant,  ibid.  Widgery  v.Munroe  et  al.  6  Do.  449.  Far- 
man  V.  Foivle,  12  7>o.  89 

f    A  note  or  bill  of  exchange  payable  to  order,  is  transferable  by  endorsement  only. 
Tyler  v.  Binney,  7  Do.  4"9. 

Where  a  promissory  note  was  payable  to  order,  on  a  certain  day,  or  when  the 
promisee  should  complete  a  ceitain  building  ;  it  was  held  th<l  ihe  note  was  pnvable 
on  a  day  certain,  and  consequently  that  it  was  negotiable.  Stevens  v.  Blunt,  7  JUass. 
Hep.  240. 

In  Pennsylvania,  by  Act  of  Assembly  27th  February,  1797,  (3  Sm.  L.  278,)  it  is 
declared  that  promissory  nctes  drawn  in  a  certain  form,  shall  be  held  free  from  de- 
falcation. 

But  in  the  case  of  Crormvell  et  al.  v.  ^rrott,  1  Serg.  &  R.  Rep.  180,  it  was  de- 
cided that  this  Act  was  intended  only  Id  pl^ce  notes  beariiig  date  in  the  city  or 
county  oi Philadelplda,  on  an  equal  footing  with  notes  in  other  parts  of  the  commer- 
cial world,  but  not  to  give  the  holder  of  a  note  the  right  to  recover  the  whole  that 
appears  due  on  the  face  of  it,  under  all  circumstances. 

All  the  setts  of  a  bill  of  exchange,  are  considered  as  making  but  one  bill.  Jinth. 
JV.  P.  Cas.  44.  Ditrkin  et  al.  v.  Cranston  et  al.  7  Johns.  Ref).  442 

A  bill  of  exchange  without  the  words  "or  order,"  or  other-  w  irdsof  negotiability, 
is  not  so  endorseable  as  to  enable  the  endorsee  to  bring  an  action  iii  his  own  name. 
Gerard  v   Lacoste  et  al.  1  Dnll.  Rep.  194.  Barriere  v.  JVairac,  2  Dull.  Rep.  249. 

If  the  plaintiff  purchase  of  the  defendant  a  bill  of  exchange,  which  is  afterwards 
lost,  before  it  is  presented,  and  the  defendant  refuses  to  give  a  second  bill,  the 
plaintiff  may  bring  Micfe&Va^us  assMW/)Sji,  ibr  the  purchase  money.  Murray  w  Car- 
rot, 3  CaWs  Rep.  378. 

In  J\''orth  Carolina,  promissory  notes  are  not  negotiable,  unless  they  are  for  mo- 
ney. Wofford  v.  J\'V Do-well,  Rep.  in.  Co.  of  Conf.  81 .  TindaWs  exrs.  v.  Johnston,  I 
HayTv  Rep.  372. 

Also  a  bond,  part  in  money,  and  part  in  specific  articles,  is  not  negotiable.  Jamie- 
son  V.  Farr,  ibid.  182. 

If  two  partners  diaw  a  note,  payable  to  one  of  them,  whoendo.ses  it  to  the  plain- 
tiff, the  latter  may  recover  on  it.  Blake  v.  Wheadun,  2  Hayiu.  R<p.  109.  Thomp- 
son V.  Guylard,ibid.  150. 

In  South  Carolina,  an  endorspraent  on  the  back  of  a  bond,  payable  to  order  for 
value  received,  is  a  good  bill,  within  the  customs  nf  merchants,  so  as  to  charge  the 
endorser,  though  the  boml  be  not  negotiable  in  its  nature.  Bay  v.  Freazer,  1  Bay'': 
Rep.  66. 

Under  the  English  Statute,  no  obligation  to  do  a  collateral  thing  is  negotiable, 
though  to  order.  Breen  *.  Ingram,  ibid.  173. 

Where  a  man  drav/s  a  bill  Uiion  himself,  it  is  l.ke  a  note,  and  no  damages  are  re- 
coverable. M'  Candlish  v.  Cruger,  2  Bay's  Rep,  377. 


WRITTEN  CONTRACTS. 


3S9 

law  relating  to  these,  or  any  other  contracts.     In  its  nature  it  is  ch  II.  s.  i. 
confined   to   the  »»'Oo/' required  in  an  action  on  them ;  but  the    fJ"bi"8of 

^        "^         *  exchange,  &c. 


Endorsement  or  transfer  of  notes,  £jfc. 

An  enrlorsement  tnatle  in  the  following  worils,  "for  valne  received,  I  order 
the  contents  of  this  note  to  he  paid  to  A.  li  iit  his  oion  risque"  transtVi-s  the  pro- 
perty,  widi  the  nt-gotlable  quality  auacheil  to  it,  to  the  endoisee.  Rice  v.  Steams 
et  ah  3  Mass.  liep.  '2'2.>. 

Where  a  note  is  not  negotiated  hy  the  custom  of  merchants,  the  endorsee's  in* 
terest  must  he  made  to  appear,  and  (hi-  particular  power  of  the  endorsee  be  shewn. 
JVoodbridge  v.  Austin,  'i  Tyl.  Rep.  364. 

An  endorsee  of  a  firm,  of  which  he  is  a  member,  may,  on  an  endorsement  made 
by  himself,  in  the  style  of  the  partnership,  maintain  an  action  against  the  maker  of 
a  promissory  note.  Kerby  v.  Cogswell,  1   Cairies'  Rep.  ."iOS. 

Where  the  payee  of  a  negotiable  note,  made  a  special  endorsement,  by  wliich  he 
■was  not  to  be  made  liable,  and  declaring  that  he  did  not  know  on  what  considera- 
tion the  note  was  made,  such  endorsement  could  not  of  itself  be  evidence  of  the 
want  of  consideration  of  the  note.  Russel\.  Rail  et  al.  2  Johns.  Rep.  50. 

A  transfer  or  |iaymetit  of  a  noti-,  which  is  forged,  is  a  nullity,  and  no  payment. 
Markle  v.  Hatfield,  2  Johns    Rep.  4.'i5.    The  People  v.  Hoivell,  4  Johns.  Rep  296. 

If  the  endorser  of  a  promissory  note  proves  that  it  was  put  into  circulation  by  the 
drawer,  hj  falsehood  ani\  fraud,  he  may  call  on  tlir  plainiifT  to  shew,  how  he  came 
by  it,  and  what  he  gave  for  it.  Holme  v.  Karsper,  5  Binn.  Rep.  4G9. 

The  directors  of  a  bariking  coriipany  have  power-  by  their-  vote, or  by  a  power  of 
attorney  to  authorise  the  president,  nr  any  officer  of  the  bank,  to  assign  ovei-  the 
promissory  notes  payable  to  the  compairy.  The  JSTort/iumpton  Bunk  v  Pepoon, 
a  Mass.  Rep.  288. 

The  cashier  of  a  banking  company  may,  ex  officio,  endorse  a  promissory  note, 
the  property  of  the  company,  ami  authorise  a  demand  on  the  maker,  and  notice  to 
the  endorsers.  Hartford  Bank  v.  Barry,  17  Do.  94. 

The  endoisee  cannot  iir  general  bt  affected  by  any  dealings  between  the  original 
parties.  Priory.  Jacocks,  1  Johtis.  Cas.  169. 

But  between  tlie  0)i§i;mZ  parties,  the  consideration  may  be  inquir-ed  into.  The 
People  V.  Howell,  4  Johns.  Rep.  296.   S.  P.  Pearson  v.  Pearson,  7  Do.  26. 

A  note  must  be  supposed  to  have  b.  en  endorsed,  on  the  day  mentioned  in  the 
declaration,  until  the  contrary  be  shewn.  Thome  v.  fVoodhiill,  I  Jinth.  JV*.  P. 
Cas.  74. 

The  payee  of  a  note  may  restrain  its  negotiability,  but  if  after  a  subsequent  en^ 
dors  r-,  makes  it  payable  to  order,  he  shall  be  liable  to  the  subsequent  holder.  Holmes 
v.  Hooper,  I  Bay's  Rep.  160. 

Payment  ofanote,  &c. 

In  Massachussetts,  a  note  is  not  entitled  to  grace,  unless  it  be  made  payable  -with 
grace.     Jones  v.  Fates,  4  Mass  Rep.  245. 

Where  the  promisee  of  a  note,  payable  at  a  certain  day,  contracts  at  the  time,  the 
note  is  given,  not  to  demand  payment  of  it,  until  a  certain  time  ifter  its  maturity, 
such  contract  is  a  collateral  promise,  for-  the  breach  of  which,  if  there  be  a  legal 
consideration,  an  action  ri  ay  lie,  but  it  will  be  no  bar  to  an  action  on  the  note,  when 
due,  by  the  terms  of  it.     Dotu  v    Tuttle,  ibid.  414. 

The  fourth  day  of  July,  is  a  pui'lic  holiday,  and  a  note  du^  on  that  day,  is  payable 
on  the  third  t\ay  of  the  month.     Lervisv.  Burr,  2  Caines'  Cas.  in  Er   195. 

If  a  note  fall  due  on  Sunday,  pay  m.  tit  must  be  demand. -d  on  Saturday.  Jackson 
V.  Richards,  2  Caines''  Rep.  343.    Johnson  v.  Height  et  ul.  13  Johns.  Rep.  470. 
U  U  ^    ■ 


330  ASSUMPSIT. 

Part.  II.     Legislature  having  imposed  certain  stamp  duties  upon  them,  tlie 

On  bills  of 
e.xchangi;,  &c.  "~ ~  


Whether  the  protest  for  a  bill  of  exchange  must  be  made  on  the  last  (lay  of  grace. 
Fe7nvick  v.  Sears,  1   C'j'arich's  Hep.  '2G0. 

A  security  negotiable  in  its  creation,  must,  during  its  negotiation,  preserve  its  nego- 
tiable quality  ;  otherwise  when  it  is  assigned,  the  assignee  would  hold  a  contract  by 
the  assignment  different  from  the  contract  assigned.  Jiice  v.  Stearris  et  al.  3  J\Tuss. 
Hep.  225. 

It  is  competent  for  joint  payees  of  a  promissory  note,  to  assign  the  same  to  one  of 
the  payees,  :ind  such  assignment  will  have  the  same  effect,  as  if  made  to  a  stranger. 
BusseIVs  exr.  v.  Swan,  16  Jllass.  Rep.  314. 

If  a  bill  of  exchange  or  promissory  note  be  payable  so  many  months  after  date, 
cnteu/ar  and  not /u7ja7- months  are  intended.  Leffingxvell  \ .  White,  \  Johns.  Cas.9'J. 

A'egotiabilitt/  of  notes,  &c. 

In  an  action  by  the  endorser,  against  the  drawer  of  a  note,  negotiated  subsequent 
to  the  day  of  payment,  the  defendant  may  go  into  such  evidence,  as  he  would  have 
been  entitled  to,  had  the  action  been  brought  by  the  original  promisee.  Gold  v. 
Eddy,  1  Mass.  Rep.  1. 

A  promissory  note  or  bill  of  exchange,  once  paid,  ceases  to  be  negotiable.  Blake 
V.  Sexuell,  3  Mass.  Rep.  556.  £oyleston  v.  Green,  8  Do.  465.  Baker  v.  Wheaton, 
5  Do.  509. 

If  an  endorsee  of  a  note,  receive  it  under  circumstances  which  might  reasonably 
create  suspicions  that  it  was  not  good  ;  as  if  he  receive  it  afterpayment  has  been  re- 
fused, or  some  time  after  it  is  made  payable,  or  if  the  endorsee  is  not  to  be  liable  on 
his  endorsement,  the  endorsee  takes  it  liable  to  any  legal  defence,  which  might  be 
made  against  a  recovery  by  the  endorser.  Ayer  v.  Ilutchins  et  al.  4  Mass.  Rep.  STO 

A  note  loses  its  negotiability  after  it  becomes  due,  and  every  presumption  is  to  be 
made  against  it.  Johjison  v.  Bhodgood,  2  »A'.  York  Cas.  in  Er.  303.  I  Johns.  Cas. 
51.  Sed  vide  as  to  its  negotiability ,  Cromu-ell  et  al.  v.  Arrott,  1  Ser^.  &  R.  Rep.  180. 

In  an  action  brought  by  the  endorsee  of  a  note,  against  Uie  drawer,  payments  to 
the  payee  cannot  be  set  off,  unless  it  have  been  unfairly  obtained,  dishonoured,  or 
endoi-sed,  when  over  due.  Prior  v.  Jacocks,  1  Johns.  Cas.  169.  Sebrin^  et  al.  v. 
Rathbnn,  ibid.  331.  Furtna/i  v.  Haskin,  2  Caines'  Rep.  369.  Lansing  v.  Goine 
etal.  2  Johns.  Rep.  300.  Thompson  v.  Robertsori  etal.  4  Johns.  Rep.  17.  O'Cal- 
laghan  v.  Savn/er,  5 Johns.  Rep.  118. 

The  same  rule  i-ei-ogmsed  in  Pennsylvania.  Wilkinson  et  al.  v.  ^Yicklin  et  al.  2 
Dall.  Rep.  396. 

So  on  a  sealed  bill  in  A'orth  Carolina.     Black  v.  Bird,  1  Hayw.  Rep.  273. 

So  m  South  Carolina  on  a  promissory  note.     Bell  v.  Wood,  1  Bay^s  Rep.  249. 

In  an  action  by  a  bona  fide  holder  of  a  note,  taken  before  due  against  the  makpi-. 
the  consideration  cannot  be  inquired  into.  Baktr  v.  Afnold,  3  Caines'  Rep.  2T'J. 
Hendricks  \.Judah,  1  Johns.  Rep.  318. 

Where  a  note  payable  on  demand,  was  negotiated  five  months  after  its  date,  and 
there  were  payments  enilorsed  pricr  to  its  tr;msfiT,  in  an  action  upon  this  note  by 
the  endorsee,  the  maker  was  not  allowed  to  set  up  any  defence  as  against  ihi'  payee, 
or  to  impeach  the  amount  due  on  the  face  of  the  notf,  at  the  time  of  its  transfer. 
Sanford  v.  Mickles  et  al.  4  Johns.  Rep.  224. 

In  a  subsequent  case,  where  a  note  payable  on  cfemowfi,  was  negotiated  two  months 
and  a  half  after  its  date,  in  a  suit  upon  it  by  the  holder,  against  the  maker,  he  was 
allowed  to  shew  payment  to  the  original  payee  before  the  iransferof  the  note  to  the 
plaintiff.     Losee  v.  Dtmkin,  7  Johns.  Rep.  70. 

What  is  reasonable  time,  is  a  question  of  law  ;  and  a  note,  payable  on  demand,  nc 


WRITTEX  CONTRACTS.  qq. 

uant  of  %vluch  renders  them  of  no  avail,  it  may  be  proper  here  Ch,  II.  s.  i. 

On  l.iils'of' 

exchange,  &c. 


gotialed  eighteen  months  after  its  dale,  was  considered  as  being  out  of  time.  Fur- 
maii  V.  Haskin,  2  Caines'  Hep.  369.  El  vide  Cotfoy  v.  PVar'-en,  3  Johns.  Cas .  259, 

But  in  Tat/lor  v.  Bryden,  8  Johns.  Rep.  173,  it  was  held  to  be  a  question  partly 
of  fad,  and  partly  of  knv.  Et  vide  Pattoii  et  al.  v.  tVilmot,  1  Har.  &  Johns.  Rep  . 
■177. 

So  a  note  negotiated  two  years  after  date,  was  considered  out  of  lime.  Loomis  v. 
Pulver,  9  Johns.  Rep.^ii. 

There  is  no  precise  time  in  which  a  note  payable  on  demand  is  to  be  deemed  dis- 
honoured ;  but  it  must  depend  on  the  circumstances  of  the  case,  andlhe  situation  of 
the  parties.     Lossee  v.  Dunkin,  7  Johns.  Rep.  70. 

In  an  action  by  an  endors<^e  against  liie  drawer  of  a  note,  dated  in  Philadelphia, 
and  payable  on  demand,  without  defalcation,  where  it  appeared  thai  the  payee  lived 
in  Philadelphia,  and  the  drawer  at  the  distance  of  180  miles;  and  that  the  first  no- 
tice the  drawer  received  of  the  endorsement  wns  fourteen  months  after  the  date  of 
the  note,  previous  to  which  he  had  made  payments  to  the  payee,  it  was  held  that 
the  jury  might  presume  that  the  endorsee  had  notice  of  the  payments.  Cromwell 
et  al.  V.  Arrott,  1  Serg.  &  R.  Rep.  180. 

The  negotiability  of  a  note  negotiated  in  JVew  York,  is  not  subject  to  be  destroy- 
ed by  an  attachment  \n  Pennsijlvania.     IauUoiu  v.  Bingham,  4  Dall.  Rep.  47. 

The  assignee  of  negotiable  paper  is  not  liable  to  any  equity  between  the  original 
parties,  ef  which  he  had  no  notice  ;  but  a  commission  of  bankruptcy  is  notice  to  es- 
tablish a  right  of  set-off  in  the  bankrupt.     Humphries  v.  BlighVs  ass.  ibid.  370. 

The  negotiability  of  a  note  may  be  restrained  by  endorsement,  or  special  words 
in  the  body  of  the  note.     Smith  v.  St.  Lawrence,  1  Uayiv.  Rep.  174. 

A  note  not  negotiable,  is  liable  to  all  the  equity  existing  between  the  original  par- 
ties.    Welsh  V.  Watkins,  ibid.  369.     JMartin  v.  Spier,  ibid. 

Where  a  note  has  been  negotiated  after  it  becomes  due,  the  endorsee  takes  it, 
subject  to  every  defence  that  existed  in  favour  of  the  maker  of  the  note,  before  it 
was  endorsed.  Johnson  v.  Bloodgood,  1  Johns.  Cas.  51,  S.  C.  2  Caines'  Cas.  in 
Er.  302.  S.  P.  Sebring  v.  Rathbun,  1  Johns.  Cas.  331.  Jones  v.  Casxvell,  3 
Johns.  Cas.  29.  Hendricks  v.  Judah,  I  Johns  Rep.'Sl9.  (y  Callaghan  y .  Saw- 
yer, 5  Do.  118,  Lansing  v.  Gaine  et  al.  2  Johns.  Rep.  300.  Same  v.  Lansing, 
.  8  Bo.  354. 

Protest  of  a  bill  of  exchange,  &c.  a?id  tion-payment  of  notes,  and  notice  thereoj. 

An  endorser  of  a  bill  of  exchange,  is  entitled  to  notice  of  th  e  bill's  being  dishon- 
)Ured,  notwithstanding;  the  insolvency  and  absconding  of  the  drawer.  JVEay  v. 
Coffin,  i  Muss.  Rep.  341.     Barton  v.  Baker,  I  Serg.  &  R.  Rep.  334. 

A  citizen  of  the  United  States  being  in  the  East  Indies,  endorses  to  merchants 
living  in  JMadras,  a  bill  of  exchange,  payable  in  London,  2inA  returns  to  the  United 
States.  The  endorsees  forward  it  lo  their  agent  in  London,  by  whom  it  is  present- 
ed and  protested  for  non-acceptance  and  non-payment;  and  thereupon  he  returns 
it  to  his  principals,  the  endorsees  in  JMadras,  who,  within  a  reasonabl>?  time  after- 
wards, send  notice  thereof  to  the  endorser  then  in  the  United  States  ;  it  was  held  to 
be  a  sufficient  notice  to  charge  tfie  endorser.      Colt  v.  JVoble,  5  Mass.  Rep.  167. 

When  the  maker  of  a  note  has  assigned  all  his  property  to  the  endorser,  for  his 
security  against  his  endorsements,  the  endorser  is  considered,  by  accepting  the  as- 
signment, as  waiving  a  demand  on  the  makir,  as  well  as  notice  to  himscU,  by  an 
endorsee.     Bond  et  al  v.  Faniham,  ibid.  170. 

An  endorser  of  a  note  iriust  use  dne  diligence  to  recover  the  money,  and  give  no- 
tice of  the  non-payment  in  a  reasonable  tim*-,  otherwise  he  cannot  recover  against 
the  endorser.     PJielps  v.  Blood,  2  Root's  Rep.  518. 


ggg  ASSUMPSIT. 

Part.TI.      to  mention  that  in  this  case,  as  in  the  others,  it  is  necessary  to 

Or.  bills  of 
exchanp;e.  &c.  _— - — — — — — — — 

"""''""""""  Where  the  endorser  of  a  note,  before  it  became  due,  informed  the  liolder,  that 
the  niakii-  had  absconded,  and  tliat  being  secured  for  his  responsibility,  he  would 
eive  a  new  note,  and  requested  tiine  to  pay,  and  in  the  mean  time  the  note  fell  due, 
it  was  held  that  the  holder  w:(s  not  hound  to  make  a  demand  on  the  maker,  or  give 
notice  to  the  endorser.     Leffing-inellM.  White,  1  Johns.  Cas.  99. 

Where  the  holder  of  a  note  on  the  d:iy  it  was  payable,  ivceived  a  part  from  the 
maker,  an.i  gave  notice  of  non-payment  generally  to  the  endorser,  it  was  held  suf- 
fjcienl  to  charge  the  endorser  with  the  residue.  James  w.  Badger  et  al.  ibid.  151. 

A  notice  to  the  endorser  on  the  third  or  last  day  of  grace,  after  a  demand  on  the 
ttiak  r  and  his  default,  is  good.      Corp  v.  JW  Comb,  ibid.  328. 

The  prevalence  of  a  malignant  fever  in  JVeiu  York,  was  held  a  sufficient  excuse, 
for  not  giving  notice  imtil  JVovember,  of  the  protest  of  a  bill  of  exchange  for  non- 
payment made  in  September.     Tunno  et  al.  v.  Lagrie,  2  Johns.  Cas.  1. 

The  drawer  of  a  bill  of  exchange,  which  has  been  accepted,  is  not  responsible 
until  after  the  default  of  the  acceptor,  and  the  holder  must  use  due  diligence  to  de- 
mand payment  of  the  acceptor  b  fore  hi-  can  resort  to  the  drawer.  J^nnvoe  et  al. 
V.  Enston,  ibid.  75.  Fisher  v.  Evu7is,  5  Bitm.  Rep.  541.  Freeman  v.  BoyiUon,  7 
Mass.  Rep.  483. 

There  is  no  particular  form  of  notice  of  p^tyment  to  an  endorser  of  a  note  :  it  iff 
sufficient  if  under  all  the  circumstances  it  put  him  on  the  inquiry.  Reedy  V.  Seixas, 
2Jolms.  Cas.  337.     Vide  Smith  v.  Whiting,  12  Mass.  Rep.  6. 

Want  of  funds  belonging  to  the  drawer  excuses  notice  of  non-payment,  as  well 
vhen  the  bill  of  exchange  isacccpt'-d  as  when  it  isnot.  Hoffman  \.  Smith,  I  Caines' 
Rep.  157. 

If  the  maker  of  a  iwte  cannot  be  found  when  it  becomes  due,  evidence  of  it,  is  suf- 
ficient to  support  the  general  avernn nt  that  the  notewas  presented  and  payment 
refused.     Steivnrtv.  Eden,  2  Caines^  Rep.  121. 

But  if  the  maker  of  a  note  has  absconded,  and  is  not  to  be  found,  when  the  note 
falls  due,  a  demand  of  payment  is  not  necessary  in  order  to  charge  the  endorser. 
Bnncun  v.  M'  Cidhugh,  4  Serg.  &  R.  Rep.  480 

If  the  endorser  of  a  note  lie  dead  at  the  time  it  becomes  payable,  and  there  are 
executors  or  administrators  known  to  the  bolder,  notice  of  the  non-payment  must  be 
given  to  them,  for  thev  r-  present  the  testator  or  intestate.  Merchant's  Bank  v. 
Bivch''s  exr.  \7  Johns  Rep  25. 

A  check  is  a  bill  of  exihange,  and  must  be  in  like  manner  presented  for  payment 
in  reasonable  time.  Want  of  funds  in  the  hands  of  the  drawer,  will  not  excuse  the 
■want  of  presentment;  otherwise  when  the  drawer  or  makgr  of  a  check  has  with- 
drawn his  funds.     Devoe et  al.  ^.Moffat,  ^^nth.  A''.  P.  161. 

So  vvhert-  the  endorser  of  a  notp  has  two  houses,  one  in  J^'etv  York  and  one  in 
York  Island,  notice  of  non-pay  m-nt  left  in  JVeiu  York  is  sufficient,  ibid. 

Notice  to  the  enrlorser  of  a  note,  if  pevions  to  a  demand  on  the  maker,  is  bad, 
thoujjh  it  be  on  the  first  day  after  the  expiriition  of  the  days  of  grace.  Jackson  v. 
Richards,  2  Caines'  Rep.  CAS-  Vide  Whit-Mfll  et  al.  v.  Johnson,  17  Mass.  Rep. 
449.  May  v.  Coffin,  4  Mass.  Rep.  3il.  Crossen  v.  Hutcldnson,  9  Ho.  205.  Hus- 
sey  V.  Freeman,  10  Do.  184.  Sandford  v.  Dillaioay,  10  Do.  52.  Farinum  v.  Foiole, 
12  Do.  89.  Bu7ik  of  America  v.  Vardon,  2  Dall.  Rep.  78.  Mullory  v.  JGrwan, 
ibid.  \92.  Worderv.  Cnrso7i's  exrs.  ibid  233.  Bank  of  America  v  Petit, i  Do. 
127.  Balls.  Dennis,  ibid  108.  Sed  contra  Agan  y.  M'Manus,  II  Johns.  Rep. 
181.     Stothart  v.  Parker,  Overt.  Rep.  2fil. 

When  upon  a  bill  payable  so  many  davs  after  sight,  the  holder  presents  the  bill 
for  wccejitance,  and  eltcts  to  consider  what  passes  on  such  presentment  as  a  uon- 
acceptance,  (though  in  strictness  he  might  have  acted  otherwise,)  and  protests  the 


WRITTEN  CONTRACTS. 


333 


see  that  a  proper  stamp  is  impressed  ;  one  of  the  same,  or  greater  ch.  n.  s.  i. 

. On  bills  of 

bill  for  non-acceptance,  he  is  bound  by  such  election,  as  to  all  the  other  parties  to  ' 
the  bill,  and  must  give  due  notice  to  them  of  the  dishonour  accordingly,  otherwise  ' 
they  will  be  disciiarged.     JHitchcll  v.  Degrand,  1  J\fason's  Jiep.  176. 

When  the  facts  ar-  ascertained,  wheth>-r  the  notice  he  reasonable  or  not,  is  purely 
a  question  of  law.  Taylor  v.  Bryden,  8  Johns  Hep.  13.3.  Bryden  v.  Bryden,  II 
Ifo.  187.  Ireland  et  id.  v.  fiip,  ibid.  231.  Hussey  v.  Freeman,  10  Mass.  litp.  84. 
Et  vide  Ferris  v.  Saxton,  1  South.  Jiep.  1. 

Where  the  parties  live  in  the  same  town,  personal  notice  must  be  given  of  the 
hon-payment — hut,  in  other  cases,  the  putting  of  a  letter  into  the  mail,  addressed 
to  the  party  entitled  to  notice  is  legal  notice.     Shepard  v.  Hall,  1  Con.  Rep.  329. 

A  note  payable  at  a  particular  place,  must  be  presented  there  for  payment, 
though  the  parties  reside  elsewhere.  Tlie  HcuHford  Bank  v.  Stedman  et  at.  3  Do. 
489. 

A  bill  was  drawn  and  dated  in  Alexandria,  on  persons  residing  in  JVeiu  York, 
who  accepted  it.  The  drawer's  residence  was,  in  fact,  in  Fairfield,  .in  Connecti- 
cut; which  was  publicly  known,  and  was  particularly  known  to  one  of  the  accep- 
tors, '[he  bill  being  protested  for  non-payment  immediately  afterwards,  two  let- 
ters containing  notice,  were  put  into  the  post-office  at  J\eta  York,  one  addressed  to 
the  drawer  at  Alexandria,9.w\  the  other  to  him  at  AVw  ForA?,  and  a  third  addressed 
to  hira  at  J^ew  York,  was  left  at  the  counting  house  of  the  acceptors.  It  was  held 
that  although  the  holder  was  ignorant  of  the  drawer's  place  of  residence,  yet  as  it 
did  not  appear  that  he  had  used  <lue  diligt-nce  to  make  inquiry,  the  notice  given 
■was  insufficient.     Barmvell  et  al.  v.  Mitchell,  3  Do.  101. 

An  endorser  of  a  note  of  an  insolvent,  is  not  liable  without  any  previous  demand 
on  the  maker,  and  notice,  though  the  endorsement  have  been  without  any  consider 
ration,  and  merely  to  give  currency  to  the  paper.  Jackson  v.  Richards,  2  Caines'' 
Hep.  243.     Buck  v.  Cotton,  2  Coji.  Rep.  126. 

A  bill  of  exchange  was  drawn  and  dated  at  J^Texv  York,  on  persons  residing  tiiere 
■who  accepted  it;  the  drawers  in  fact  resided  in  Petersburg,  (Virginia  ;)  the  bill  was 
protested  for  non-payment;  on  the  same  or  next  day,  two  letters  were  put  into  the 
post-of[l.;e  giving  notice  to  the  drawers,  the  one  directed  to  JVew  York,  the  other  to 
J^orfolk,  the  supposed  residence  of  the  drawers ;  it  was  held  that  as  it  did  not  ap- 
pear the  holder  knew  of  the  drawer's  place  of  residence,  that  he  used  due  diligence. 
Chapman  v.  Lipscombe  et  at.  I  Jolms.  Rep.  293. 

A  notary  on  protesting  a  note  is  not  bound  to  give  all  the  endorser's  notice.  Mor- 
gan v.  Van  Ingen,  2  Jolms.  Rep.  204. 

Where  an  endorser  of  a  not*-  winch  has  not  been  paid  by  the  maker  afterwards 
promises  the  holder  to  pay  the  note,  a  previous  demand  on  the  drawer  and  notice 
to  the  endorser  need  not  be  [)roved,  but  will  be  piesnmed.  Pierson  et  al.  v.  Hooker, 
3  Johns.  Rep.  68.     Hopkins  v.  Liswell,  12  Muss.  Rep.  52. 

A  protest  of  a  bill  of  exchange  for  non-acceptance  is  sufficient  to  maintain  a  suit 
by  the  holder  against  thedrawer  without  a  protest  for  non-payment :  and  if  the  decla- 
ration state  such  a  protest,  it  may  be  rejected  as  sut])lu3ag.;.  .Mason  v.  Franklin, 
5  Johns.  Rep.  202.     Welden  et  al.  v.  Buck  et  al.  4  Johns.  Rep.  144. 

Where  a  bill  was  drawn  on  a  person  at  Liverpool  payable  in  J^ondon,  and  the  bili 
■was  duly  presented  at  TAve.rpool,  and  protested  for  non-acceptance,  and  afterwards 
for  non-payment  at  Liverpool,  it  was  held  sufficient,  as  no  place  in  London  was  de- 
signated, and  the  holder  might  at  his  election  cause  the  bill  to  be  protested  for  non- 
paym- nt  in  io7i</o«,  or  at  the  place  where  the  drawee  lived.  Mason  \.  Frank- 
lin, 3  Johns.  Rep.  102.  ' 

So  where  another  bill  being  drawn  on  a  person  in  Liverpool,  payable  in  London, 
and  after  being  pi'otesled  for  non-accepiance  at  Liverpool,  was  pi'otested  at  London, 
for  non-payment,  it  was  held  as  no  place  of  payment  irt  London  was  specified  in  the 


334;  ASSUMPSIT. 

Part  II.      value,  but  of  another  denomination,  will  not  be  sufficient  ;(1)  but 

On  bills  of    

exehaiii;**,  fccc. 

_^______  bill,  the  holder  was  not  bound  to  make  any  inquiry  after  the  drawee  there.     Boat 

/"I  A  I? .....  et  al.  V.  Franklin,  3  Julins.  Rep.  207. 

\i )  r  arr  ik  '  ' 

Price    1  East       VVhere  a  crcdiior  recovered  from  his  debtor  an  order  on  a  third  person  for  the 

55.*  amount  of  his  debt,  which  the  drawee  agreed  to  pay  in  ten  or  fifteen  rffl^s,  and  the 

order  was  not  i)reseiited  until  three  months  after,  and  in  the  mean  time  the  drawee 

failed,  it  was  held  that  the  holder  had  not  used  due  diligence,  aad  that  the  drawer 

was  discharged.     Broxver  v.  Jones,  ibid.  230. 

An  acceptor  of  a  bill  cannot  objfct  that  a  demand  was  not  made  on  him  perso- 
7iaUy  ;  it  is  sufficient  if  it  be  stated  that  payment  was  demanded  at  the  house  orplace 
where  the  bill  was  accepted  to  be  paid.  Fodenet  al.  v.  Sharp  etal.i  Johns.  Rep.  1S3. 

If  an  endorser  of  a  note  who  has  not  had  regular  notice  of  the  non-payment  of 
the  maker,  with  a  full  knowledge  of  the  fact,  makes  a  subsequent  promise  to  pay, 
it  is  a  waiver  of  the  want  of  due  notice.  Durijee  v.  Demiison,  5  Johns.  Rep.  248. 
Miller  V.  Hucklry,ihid.  375. 

Where  a  bill  has  been  protested  for  non-acceplance,  and  due  notice  given  to  the 
endorser,  it  is  no  objection  that  the  demand  of  payment  or  protest  were  a  day  too 
late,  as  the  liability  of  the  parly  for  the  non-acceptance  is  already  fixed,  ibid. 

The  protest  of  a  promissory  note  is  no  evidence  by  itself;  the  demand  and  notice 
must  be  proved  as  if  no  protest  had  been  made.  Cummingsv.  Fisher,  1  Anth.  JV. 
P.  Cas.  1. 

Will  re  the  maker  of  a  note  is  notoriously  absent  in  a  toreign  country,  diligent  in- 
quiry lor  him  need  not  be  proved,  ibid. 

Notice  ofprotestof  a  bill  of  exchange  must  be  given  notwitbstaading  the  preva- 
lence of  an  epidemic.     Roosevelt  v.  lVoodhull,ibid.  21, 

AVliere  a  bill  is  remitted  to  pay  a  precedent  debt,  if  due  diligence  be  not  used  in 
obtaining  payment  and  due  notice  of  dishonour  given,  it  will  be  a  satisfaction  of  such 
<lcbt.     Cooper  V.  Poxuell,  ibid.  31. 

A  protest  for  non-payment  must  appear  under  a  notarial  seal,  but  it  is  not  neces- 
sary that  the  non-acceptance  should  be  certified  in  the  protest  ;  for  that  may  be  suf- 
ficiently established  by  other  evidence.     Morris  v.  Foreman,  1  Dull.  Rep.  193. 

If  the  holder  do  not  give  reasonable  notice  of  the  protest,  he  takes  the  loss  upon 
himself  Steinmetz  et  al.  v.  Currey,  1  Dall.  Rep-  234.  270.  Robertson  et  al.  v.  Vo- 
gle,  ibid.  252.  Bank  ofA'orth  .imerica  v.  Vardon,  2  Ball.  Rep.  78.   Watts  v.  fVil- 

"  Several  cases  have  lately  occurred  on  this  subject,  some  at  vVwJ  Priiis,  where 
a  question  depending  on  several  Acts  of  Parliament  could  not  be  very  accurately 
considered  ;  and  others  in  Bank,  where  the  different  Statutes  have  been  referred 
to  and  discussed.  1  shall  only  reler  to  those  of  the  latter  description.  In  the  case 
of  Farr  v.  Price,  1  East,  55,  cited  above,  the  Court  held  that  a  promissory  note  for 
25/.  5s.  wi'itten  upon  a  9</.  stamp,  (being  the  stamp  imposed  by  31  Geo.  3,  c.  25,  on 
notes  not  exceeding  50/.)  instead  of  an  8t/.  stamp,  (being  that  required  by  Stat.  37 
Geo.  3,  c.  90,  on  notes  not  exceeding  .30/.)  was  void.  But  in  Taylor  v.  Hague,  2 
Fast,  414,  it  was  determined  that  a  promissory  note  for  45/.  which  by  law  required 
a  stamp  of  Is.  Ge/.  composed  of  three  different  sums  applicable  to  three  different 
funds,  under  three  Acts  of  Parliament,  being  written  on  a  2s  stamp,  composed  of 
three  different  suuis  applicable  to  the  same  funds ,  though  in  Zar§-er  proportions  to 
each  than  was  required,  such  note  was  good.  In  the  last  case,  the  note  was  drawn 
since  the  37  Geo.  3,  but  it  has  been  very  lately  determined  that  a  note  drawn  before 
that  Statute  upon  a  receipt  stamp  of  equal  value,  is  not  good.  Chamberlain  v.  Por- 
ter, 1  Bos.  £5"  Put.  JV,  R.  30. 

A'ote  Hv  Statute  44  Geo.  3,  c.  98,  all  former  stamp  duties  are  repealed  after  10th 
Oct.  1804,  and  new  ones  imposed,  as  was  again  done  by  55  Geo.  3,  c.  184.    • 


WRITTEN  CONTRACTS.  335 

the  Legislature(l)  has  provided  that,  in  such  case,  the  commis-  Ch.  it.  s.  1. 

On  bills  of 
— exchange,  &c. 


ling-,  ibid.  101.  130.   Bank  of  JVorth  America  v.  M' Knight,  ibid.  158.    JVldlory  v. 
Kinvan,   ibid.  192.   Warder  v.  Carsoji'se.vrs.  ibid. '2^3. 
DotuiUkonv.  Means,  i  Dull.  Rep    109.    Jiank  of  JVo 


Kinvan,   ibid.  192.   Warder  v.  Carsoji'se.vrs.  ibid. '2^3.  S.  C.  1  Yeates'  Rep.  531.  (1)  B.V  Stat 

trth  America  v.  Pettit,  ibid.  ^^ y"""^:  •^'' 


1 .36  s.  4  Sc  5 
127.  Bank  9/ J\'orth  America  V.  Wycoff",  ibid.   151.    Ball  v.  Dennison,  ibid.  l63.    '    '    * 

Henry  v.  Doimagliy,  Addis.  Rep.  40.   Craig  v.  Broivn,  I  Peters'"  Rep.  \7\. 

See  the  above  cas^s  as  to  what  is  reafsonable  notice  .' 

On  this  point  in  Virginia,  set-  Stott  et  al.  v.  Alexander,  1  Wash.  Rep.  428.  Wood 
V.  Liittrell,  1  Call's  Rep.  232.  Et  vide  Wilson  v.  Lenox,  I  Cranch's  Rep.  195. 
Fentvick  v.  Sears,  ibid.  260.  French  v.  Bank  of  Columbia,  4  Crancfi's  Rep.  141 . 

So  in  JVorth  Carolina.  Greenlee  v.  Young,  1  Jlayw.  Rep.  3.  Broron  v.  Craig; 
ibid.  378.  Pwt's  exrs.  v.  Kelly,  2  JIayxu.  Rep.  45.  London  v.  Ho-ward,  ibid.  302. 
332. 

In  .VoJ/i/i  Carolina.  Scarborough  et  al.  v.  Harris,  1  Bay's  Rep.  177.  Edwards 
y.  Thayer, '2  Bo.  217.  Payne  v.  Winn,  ibid  374. 

In  J\''e7f  Orleans.  Dunca7i  v.  Young,  JVIarliiCs  JVVru  O/'/.  T.  Se/).  32. 

Where  the  drawee  of  a  bill  of  exchange  has  no  funds  in  the  hands  of  the  drawer 

there  is  no  necessity  for  notice  of  non-acceptance  to  the  drawer.   v.  Staii- 

ton,  1  Hayiv.  Rep.  271. 

It  is  not  necessary  that  actual  notice  should  be  given  in  every  case  ;  but  it  will  be 
considered  as  constructive  notice,  if  it  be  left  at  the  house  of  the  endorser,  or  sent 
by  mail,  even'though  the  letter  should  miscarry.  Smith  v.  Bank  of  Wasfungton,  5 
Serg.  &  R.  Rep.  318. 

Putting  a  letter  in  the  post  office  will  be  considered  as  notice,  whether  it  be  re- 
ceiveil  or  not,  provided  it  might  have  reached  the  person  to  bs  affected  in  the  regu- 
lar course  of  the  mail,  but  it  will  be  notice  only  from  the  time  at  which  it  ought  to 
have  been  received,  ibid.  The  IJncoln  &  Kennebeck  Bank  v.  Page,  9  JVlass.  Rep. 
155.  Fame  y.  Hammatt,  ibid.  159.  Bussard  v.  Levering,^  Do.  102.  Lindenberger 
V.  Beall,  ibid.  104. 

Notice  left  with  the  family  of  a  seafaring  man,  during  his  absence  at  sea,  is  suffi- 
cient. Fisher  v.  Evans,  5  Binn.  Rep.  542. 

Liability  of  the  parties  on  a  note,  &c. 

An  endorsee  for  a  valuable  consideration  of  a  note  7iot  negotiable,  may  write  over 
the  name  of  the  endorser  a  promise  to  pay  the  contents  of  the  note  to  the  endorsee, 
who  may  maintain  an  action  against  the  endorser  upon  such  endorsement.  Josselyn 
V.  Ames,  3  Mass.  Rep.  274. 

The  endorser  of  a  note  is  liable  to  pay  it,  on  the  implied  condition  that  the  en. 
dorsee  shall  present  it  to  the  promissor  when  due,  and  demand  payment  of  it,  if  it 
can  be  done  by  using  due  diligence,  and  also  giving  seasonable  notice  to  the  endorser 
of  the  failure  of  the  promissor  ;  and  if  the  endorsee  do  not  comply  with  this  condi- 
tion, the  endorser  is  discharged,  unless  he  has  waived  the  condition.  Putnam  et  al.  v. 
Sullivan  et  al.  4  Mass.  Rep.  45,  Joiies  v.  Fales,  ibid.  245.  Bond  et  al.  v.  Pam- 
ham,  5  Do.  170.  Freeman  et  al  v.  Boynton,  7  Do.  483.  Shaw  v.  Griffith,  ibid.  494. 
Heiiry  v.  Jo?ies,  8  Do.  45:3.  Copp  v.  M'Dugall,  9  Do.  1.  The  Lincoln  ^  Kenne- 
beck Bank  v.  Page,  ibid.  155.  Crossen  v.  Hutchinson,  ibid.  205.  Tower  v.  Durell. 
ibid.  332.  Sondford  v.  DiUaway,  10  Do.  52.  Hussey  v.  Freemari,  ibid.  84.  Farnuin 
Y.  Fowie,  12  Do.  89.   Thaijer  v.  Brackett,  12  Do.  450. 

A  promissory  note  given  by  one  member  of  a  commercial   company  to  another 

member,  for  the  use  of  the  company,  will  sustain  an  action  at  law  by  the  promisee 

n  his  own  name,  notwithstanding  both  are  partners  in  the  company,  and  the  money 


336  ASSUMPSIT. 

Part  II.      sioners  of  stamps  may  order  a  proper  stamp  to  be  impressed  ou 

On  bills  of 

excliaiS' ,  8cc.  ~ 

■        when  recoveretl,  will  belong  to  the  company.     Van  J\'ess  v.  Forrest,  8   Cranch's 
Rep.  30. 

Whi-n  a  promissory  note  is  endorsed  and  delivered  to  a  bank  for  collection,  there 
is  an  implied  underlaking  on  the  part  of  the  bank,  in  case  the  note  is  not  paid,  to 
give  notice  of  the  maker's  default  to  all  ihi-  endorsers;  and  if  th.-y  neglect  to  give 
such  notice,  the  holder  may  mHintain  assumpsit  agairist  them  for  their  nonfeas- 
anee  ;  the  deposit  of  the  note  and  the  probable  profit  to  arise  from  the  money  re- 
maining back,  being  a  beni^ficial  act,  and  afFoiding  a  good  consideration  to  support 
a  promise.     Smedes  v.  Bank  ofUtica,  20  Juhnf.  Rep  372. 

But  if  given  to  a  notary,  it  stems  the  hunk  is  not  liable  for  his  neglect,  ibid. 

If  payment  of  a  note  entitled  to  days  of  g>aee  be  demanded  of  thi-  maker  b'-fore 
the  last  day  of  grace,  the  endorser  is  not  liable.  Joneii  v.  Fales,  iMass.  Rep.  245. 

Where  one  gave  a  negotiable  note,  as  guardian  of  an  insane  person,  it  was  held 
that  he  was  liKble  in  his  individual  capacity  after  his  guardianship  w;is  discharged. 
Thatcher  v.  Dinsmore,  5  Mass.  Rep.  299.  Vide  Ballon  v.  Talbot,  16  Mass.  Rep. 
461.  ' 

In  an  action  by  the  endorsee  against  the  drawer  of  a  note,  if  the  defendant  set  up 
payment  to  the  promisee  as  a  defence,  such  pnyraent  must  have  been  before  the 
endorsement,  or  the  defence  will  not  be  substantial.   Webster  "v.  Lee,  ibid.  334. 

A  bill  of  exchange  was  endorsed  thus:  "  Pay  T.  W.  or  order,  for  our  use,  value 
receized  in  account.^*  The  payee  had  given  an  obligation  to  the  drawer  to  pay  the 
amount  of  the  bill  when  that  should  appear  to  have  been  paid,  and  it  it  should  be 
dishonoured  it  was  to  be  exchanged  for  ihe  obligation,  the  drawer  to  pay  all  ex- 
penses. In  an  action  ujion  the  bill  by  the  endorsee  against  the  drawer,  it  was  held 
that  this  evidence  was  properly  given  to  the  jury,  and  that  the  defendant  was  not 
liable,    Wilson  v.  Holmes,  ibid.  543. 

In  Connecticut,  where  an  assignment  of  a  note  contains  a  promise  it  shall  be  paid 
when  it  becomes  due,  an  action  lies  against  the  assignor  when  the  note  becomes  due, 
if  it  be  not  paid.  Perkins  v.  Perkins,  1  Root^s  Rep.  541. 

A  blank  endorsement  on  a  note  will  render  the  endorser  liable  in  case  it  cannot 
be  recovered  by  the  endorsee's  using  due  diligence.  Brailley  v.  Phelps,  2  Root''s 
Rep.  285. 

If  a  bill  of  exchange  be  not  accepted,  an  action  will  lie  upon  it  against  the  drawer 
before  the  time  when  it  is  payable.  Sterry  v.  Robinson,  1  Day^s  Rep.  11 .  Watson 
V.  Loring,  3  Mass.  Rep.  557.  Weldon  v.  Black,  4  Johns.  Rep.  144.  Winthrop  v. 
Pepoon  et  al  1  Bay''s  Rep.  468. 

If  an  endorser  of  a  note  pay  it  after  the  maker  has  been  discharged  gnder  the  in- 
solvent Acts  he  may  recover  the  amount  from  the  maker,  whose  discharge  will  be 
no  bar  to  the  action.    Frost  v.  Carter,  1  Johns.  Cos.  73. 

Where  one  of  a  sett  of  three  bills  of  exchange  on  London  was  piotesled  for  non- 
payment, it  was  held  that  an  action  inight  be  maintained  here  against  the  endorser 
on  one  of  the  sett  not  protested  witii  the  protest  of  the  other  ;  that  a  proceeding 
against  the  acceptor  under  a  commission  ot  bankruptcy  in  London,  did  not  discharge 
the  right  of  action  against  the  endorser.     Ken-worthy  v.  Hopkins,  ibid  107. 

The  drawer  of  a  bill  of  exchange  accepted,  is  not  liable  until  due  diligence  has 
been  used  to  recover  it  of  the  drawee.     Mtmroe  et  al.  v.  Easton,  2  Johns.  Cos.  75. 

The  holder  of  a  bill,  though  be  receive  onl\  as  a  matter  of  couriesx  as  agent, 
cannot  retain  a  note  without  using  diligence,  and  if  he  do  he  will  be  liable.  Rutgers 
et  al.  V.  Lucet,  ibid.  92. 

If  the  payee  of  a  note  payable  to  him  or  bearer,  put  his  name  on  the  back,  he 
may  be  sued  as  endorser  in  the  sanie  manner  as  if  it  were  payable  to  his  order. 
Brush  V.  Reeves'  admr.  3  Johns.  Rep.  4S9. 


WRITTEN  CONTRACTS.  ggiv 

payment  of  the  tluty,  and  40s.  in  case  the  bill,  &c.  shall  be  pro-  Ch.  ii.  s.  i. 

Oh  bills  of 

'  "  e  xcli  an  ge ,  &e . 

In  J7;;f*«w«,  tl"-' assignee  of  a  note  must  sue  the   maker  before  he  can  resort  to   ——^—^mm 
the  assignor.  J^e  v.  Love,  1  Call's  Hep.  497.    Et  vide  Clark  v.  Ydiiiig,  1  Cra7ic/i'ii 
Jiep.  181. 

A  general  acceptance  of  an  oitier  binds  the  acceptor  to  the  payee  who  took  the 
order  for  a  valuable  considitration,  nolwitlislanding  the  inducement  of  the  acceptor 
afterwards  failfd,  without  any  fault  of  il;e  payee.  Corbiii's  admr.  v.  Soiith^ate,  3 
I/ni.  &  JMunf.  Rep.  319 

Whetlier  the  endorser  of  a  bill  of  exchange  is  discharged  by  tiie  holder  of  the  bill 
charging  the  drawer  in  account  current,  where,  upon  the  whole  account  current, 
the  balance  due  is  less  tiian  the  amount  of  the  bill.  Wilson  v.  Lenox,  1  Cranch\ 
Rep.  195. 

Whether  the  endorser  is  discharged  by  the  holder's  receipt  of  part  of  the  money 
from  the  drawer  .'  ibid. 

AVherever  a  new  creditor  time  for  payment  is  given  by  the  holder  of  a  bill  of 
exchange  to  the  drawer,  the  endorser  is  discharged.  Scarborough  et  al.  v.  Har- 
ris, 1  Bay''s  Rep.  177.     Shaw  v.  Qriffitli,  7  Mass.  Rep.  49-i. 

In  an  action  on  a  bill  accepted  by  defendant,  he  cannot  shew  the  v/ant  of  funds  in 
bis  h^nds.     Scarborough  v.  Geijer,  1  Bay's  Rep.  368. 

The  endorsement  of  a  note  in  part,  and  afterwards  the  residue,  will  not  bind  the 
endorser.    Hughes  v.  Kidilell,  2  Bay's  Rep  3-24. 

Where  a'  check  dated  12th  ^pril,  1796,  which  was  never  presented  to  the  bank 
for  payment,  but  a  suit  was  brought  about  four  years  after  against  the  drawer,  it  was 
held  that  the  plaintiif  was  not  eniiilc<l  to  recover.  Cruger  v.  Armstrong  et  al.  3 
Johns.  Cos.  5. 

A  cli!  ck  must  be  presented  at  the  bank  within  a  reasonable  time.  Cornoyy.  IVar- 
ren,  3  Do.  259.    Cruger  v.  Armstrong  et  al.  ibid.  5. 

But  where  the  drawer  ^stains  no  injury  by  its  not  being  presented,  as,  where  he 
defeats  the  payment  of  the  check,  by  withdrawing  his  funds  at  the  bank,  he  cannot 
object  to  the  delay  in  presenting  it.  ibid. 

Want  of  demand  on  the  maker  or  acceptor,  will  be  excused  when  he  cannot  be 
found,  and  may  be  given  in  evidence  under  an  averment,  that  the  note  was  presented 
and  payment  refused.  Stewart  v.  Eden,  2  Caines'  Rep  121.  Vide  Foden  et  al.  v. 
Sharp,  4  Johns.  Rep.  183. 

That  the  drawer  has  no  funds  in  the  hands  of  the  drawee,  is  no  excuse  for  not  de- 
.'liunding  payment.   Cruger  v.  Jlrmslrong  et  al.  3  Johns.  Cas.  5. 

Consideration  of  a  bill,  &c. 

Every  note  within  (he  Statute,  imports  a  consideration,  unless  the  contrary  appear 
in  th--  note  itself.  Goshen  Tump.  Co.  v.  Hurtin,  9  Johns.  Rep.  217.  jVIandevillev. 
Welch,  5  Wheat.  Rep.  '277. 

The  words  "  value  received,''  in  a  note,  are  prima  Jade  evidence  of  a  considera- 
tion, and  Sufficient  to  cast  on  the  defendant  the  burthen  of  proving  the  contrary. 
Jeromes'.  Whitney,?  Johns.  Rep.  321.  Contra,  Lansing  \.  j\tKillip,3  Caines* 
Rep.  286. 

The  holder  of  a  bill,  note,  or  check,  \s  prima  facie  to  be  deemed  (he  rightful  owner 
of  it,  and  he  need  not  prove  a  con^idi-ratio.',  (  xci  pt  when  circumstatices  of  suspi. 
cion  appear.  Cruger  v.  Armstrong  et  al.  3  Johns.  Cas.  5.  Conroy  v.  Warren,  ibid. 
259.    Riddle  M.Mande-villeetal  5  Crunch's  Rep.  322. 

Notes  delivered  after  the  time  they  bear  date,  are  valid  only  from  the  day  of  deli. 
Tery,ai:n  arc  to  be  considered  as  drawn  on  that  day.  Lansing  y.  Gains  et  al.  2 
Johns.  Rep.  300. 

Where  a  pf-oraissory  note  was  given  for  the  purchase  of  real  property,  and  the 

Xx 


338 


ASSUMPSIT. 

Part  II.     duced  to  them  before  due ;  but  If  not  produced  till  afterwards, 
On  bills  of   ^j^gj^  j^  ^      jjg  stamped,  on  payment  of  the  duty  and  10/. 

exchange,  NC.  •'  i  r   j  j 


title  to  it  tails,  it  is  no  good  dele  nee  against  tlie  note,  unless  the  failure  be  total. 
Grtenleaf  v.  Cook,  2  IVheat.  Rep.  13. 

Acceptance  and  non-acceptance. 

An  acceptance  by  a  collateral  paper,  is  good.  J\l'Evers  v.  JMason  el  al.  10 
Johns.  Rep.  207. 

It  seems,  that  a  promise  to  accept  a  bill  already  drawn,  may,  under  circumstances, 
amount  to  an  acceptance.  Mau/ieiv  et  al.  v.  l-'tince,  11  SHass.  Rep.  54. 

But  it  seems,  tlwt  a  promise  to  accept  a  bill  not  in  esse,  will  not  amount  to  a  legal 
acceptance,  ibid. 

A  letter  written  within  a  reasonable  time  before  or  after  the  date  of  a  bill  of  ex- 
cbangi",  describing  it  in  terms  not  to  be  mislyken,  and  promising  to  accept  it,  if 
shewn  to  the  person,  who  afterwards  takes  ih'-  bill  on  the  credit  of  the  letter,  is  a 
%'irlual  acceptance,  binding  upon  the  promissor.  Corli(lge\.  Payson,  1  Wheat. 
Rep.  06. 

Remedy  on  notes,  ^c. 

In  an  action  by  an  endorsee  against  an  endorser  of  a  note,  the  plaintiff  is  not  held 
to  prove  a  demand  on  the  promiser,  if  it  api)ear  that  he  had  absconded  before  the 
note  was  payable.  Pntnam  et  al.  v.  Sullivaii  et  al.  4  jyfass.  Rep.  45.  Widgery 
V.  Munroe  et  al.  6  Do.  449.     Hale  v.  Burr,  12  Do.  86. 

In  an  action  agamst  the  maker  of  a  note  by  the  drawee,  the  defendant  may  give 
in  evidence  under  no7i-assnmpsit  the  want  ot  consideration.  Hatoley  v.  Beeman,  2 
Tyler's  Rep.  '238.  ibid.  230.     Tappen  v.  Van  Wog-enen,  3  Johns.  Rep.  458. 

A  note  given  lor  a  consideration  that  is  against  Inw  (^\  be  avoided  in  an  action 
brought  ujion  it.     Kitchum  v.  Scribner,  1  Root's  Rep.  95. 

A  note  for  spt  cific  articles  payable  on  demand,  must  he  specially  demanded.  Dean 
V.  Woodbridge,  ibid.  191. 

A  bill  of  exchangi  remitted  to  pay  an  antf^cedent  debt  returned  protested,  will 
not  be  entitled  to  damages.  Ken~vorthy  v.  Hopkins,  1  Johns.  Cas.  107.  Thompson 
V.  Robertson  et  al.  4  Johns.  R'p.  '27. 

Same  point  in  Pennsylvania.     Chapman  v.  Sleinmetz,  1  Doll.  Rep.  261. 

A  note  given  for  a  valuable  coiisiieration,  may  be  gl<^en  in  evidence  under  the  mo- 
ney counts  in  an  actron  of  assumpsit.     Smith  v    Smith,  2  Johis.  Rep.  235. 

A  note  to  pay  a  certain  sum  o'  money  in  lands,  may  be  giv^ n  in  evidence  under 
the  moiey  counts:  and  the  admission  of  the  defend  uit  that  .he  could  not  convey  the 
land,  and  his  promise  to  pay  the  note,  are  sufficient  eviflence  of  a  consideration. 
Smith  V.  Smith,  ibid. 

A  bill  of  exchange  may  be  given  in  evidence  in  an  action  by  the  payee  against  the 
maker,  under  the  money  counts.  Crnger  v.  Armstrong  et  al.  2  Johns.  Cas.  5 
S.  p.     Arnold  w  Crane,  8  Johns.  Rep.  62. 

A  pronjise  by  an  endorser  to  pay  a  note,  afti-r  being  discharged,  by  neglect  of  due 
notice,  is  not  binduig,  unl  -^s  made  with  a  knowledge  of  all  the  material  tacts,  jl/ar- 
tin  V.  Wi'islotv,  2  Jllason's.  Rep.  241. 

The  right  t"  recover  20  pc-r  cent,  damages  on  the  pi  otest  of  a  foreign  bill  of  ex- 
change rests  wiih  us  on  iiiimemorial  commercial  usage,  sanctioned  by  a  long  course 
of  judicial  decisions.  \n  Great  Brit  aiji,  it  does  no(  e.xist.  PerSPENCEuJ,  Hen' 
dricks  V.  Frankliii,  4  Johns.  Rep.  119. 

Ot*  a  bill  of  exchange  drawn  in  a  foreign  country,  and  made  payable  there,  when 
sueii  (ui  here,  the  pluiin  iff  can  I'ecover  interest  only  according  to  the  legal  rate  ot 
the  country  where  the  contract  was  made.  Foden  et  al.  v.  Sharp,  4  Johns,  Rep,  183. 


WRITTEN  CONTRACTS,  33^ 

In  cases,  however,  where  a  bill  or  note  is  not  properly  stamp-  Ch.  ii.  s.  1. 

On  bills  of 
^ ^^         excliange,&c. 


In  Pennsybania,  tlie  damages  are  regulated  by  Statute  passed  30ih  JStarch,  1821. 
7  I.aius  Penn.  434. 

Where  the  endorser  of  a  piomissory  note  has  incurred  expenses  in  a  suit  against 
the  maker,  in  which,  he  has  tailed,  the  endorser  is  not  liable  on  his  endorsement  for 
those  expenses,  or  for  any  damuges  beyond  the  amount  of  the  principal  and  inte- 
rest of  I  he  note.      Ciipp  v.  J\l'  Boi/gall,  'J  Jllass.  Rep.  1. 

In  an  action  on  llie  case  by  the  payee  and  endorser  of  an  accepted  bill,  (who  had 
paid  the  bill  with  damages  and  costs,)  against  the  acceptor,  to  recover  the  amount, 
in  which  the  narr.  does  not  state  the  recovery  against  the  plaintiff,  and  there  is  no 
money  count,  the  plaintiff  cannot  recover  the  damages  and  costs  paid  by  him.  King 
et  al.  V.  Phillips,  1  Peter's  Rtp.  330. 

In  an  action  on  a  note,  wherein  the  defendant  promised  to  pay  the  plaiiitifT twelve 
months  after  date  §250,  in  brown  cotton  shiiting,  at  the  price  of  30  cents  per  yard, 
and  on  his  default,  offered  evidence  to  shew  that  clotti  of  that  description,  at  the 
time  the  note  became  payable  was  of  less  value  than  30  cents  per  yard,  held  that 
such  evidence  was  inadmissible,  the  sum  specified  in  the  note  being  the  rule  of  da- 
mages.    Brooksw  Hubbard,  3  Con.  Rep.  58. 

.  The  holder  of  a  negotiable  note,  endoi  sed  in  blank,  if  he  came  into  the  possession 
of  the  note  fairly,  and  without  fraud,  may  maintain  an  action  thereon  in  his  own 
name,  as  endorsee,  although  he  be  not  the  owner  of  the  note,  but  an  agent  or  trustee 
merely.  Little  \.  Obrien,9  Muss  Rep.  423. 

An  action  on  a  note,  payable  by  instalments,  may  be  maintained  to  recover  such 
instalments  as  have  become  due,  although  all  of  them  are  not  due.  Tucker  v.  Ran- 
dall, 2  Mass.  Rep.  283.  Estabrook  v.  Moulton,  9  Do.  258. 

An  innocent  and  bona  fide  endorsee  of  a  note,  which  is  void  in  its  creation,  may 
maintain  an  action  against  the  endorser  on  his  endorsement,  to  recover  the  amount 
of  the  note.   Capp  v.  MDougall,  9  Do.  1. 

In  an  action  agamst  the  endorserof  a  note  not  negotiable,  the  enrlorsee  may  declare 
as  in  the  case  of  a  negotiable  note.  Sanger  v.  Stimpson,  8  Do.  260.  Jones  v.  Fales, 
4  Do.  245. 

The  holder  of  a  bill  drawn  in  the  United  States  on  Great  Britain,  can  recover 
no  more  than  the  contents  of  the  bill  and  the  damages  with  interest  at  the  par  of 
exchange;  he  can  recover  nothing  for  the  difference  between  the  price  of  the  bills 
at  the  time  the  bill  was  returned  and  the  time  it  was  drawn.  Hendricks  v.  Fraiik- 
Un,Mohm.  Rep.  119. 

Upon  a  bill  of  exchange  drawn  in  England,  and  payable  there,  the  holder  can 
only  recover  the  interest  allowed  b\  that  country.   Foden  et  al,  v.  Sharp,  ibid  183. 

A  note  made  in  Jamaica,  payable  in  JVeiu  York,  is  governed  by  the  laws  of  JWw 
York,     Thompson  v.  Ketchnm,  ibid.  285.     fVarren  v.  Lynch,  5  Johns.  Rep.  239. 

In  JVorth  Carolina,  it  has  been  rided  that  the  damages  for  non-payment  of  a  bill 
of  exchange  shall  be  according  tothe  law  of  the  place  where  the  bill  is  drawn.  Ano- 
nymous,  2  Hay-w.  Rep.  280. 

A  note  made  in  another  State,  must  be  assigned  by  the  laws  of  that  State.  Rut' 
ledge  v.  Reed^  ibid.  243. 

It  has  been  rule<l  in  South  Caro/»ia,  that  a  contract  being  made  to  be  performed  in 
aforeign  country,  the  lex  loci  must  govern  it.  But  where  it  is  made  in  a  foreign  coun- 
try to  be  performed  in  Carolina,  the  laws  of  Carolina  must  be  the  true  rule. 
M'Candlish  v.  Cruger,  2  Bay's  Rep.  377. 

A  plaintiff  in  an  action  on  a  bill  of  exchange,  may  strike  out  a  special,  as  well  as 
1  general  endorsement.    Morris  v.  Foreman,  1  Dull.  Rep,  193. 


340  ASSUMPSIT. 

PaiiH.      ed/r)  the  plaintiff  may,  if  he  has  evidence  of  the  consideration 

On  bills  of  y       r  ^■  A.      j    r        .       .  l  *     •       I  "        1      1 

exchange, ice. passing  from  him  to  the  delendant,  and   counts  in  Ins  declara- 

tion  adapted  to  it,  as  in  the  case  of  goods  sold,  money  lent,  &c. 

Aives  V.         give  evidence  of  that  consideration,  and  recover  on  those  counts 

Hodgson,  7  T. 

Hep.  241.  ___^ 

Tyte  \. Jones, 

cited  1  East,  Possession  of  a  bill  is  evidence  of  an  authority  to  demand  payment  of  its  contents. 

Yet  in  a  subsequent  case,  in  an  action  bj-  the  endorser,  [i.  e.  the  payee,)  against 
the  acceptor  of  a  bill  of  exchange  which  had  been  endorsed  several  times,  the  mere 
possession  of  the  bill  was  not  con'sidered  evidence  that  the  endorser  had  paid  the 
subii'^quenl  endorsee,  which  must  be  proved  to  entitle  him  to  recover.  Gor^erat 
V.  jytCarty,  2  Dull.  Rep.  144. 

But  the  possession  of  a  negotiable  bond  is  prima  facie  evidence  that  the  endorsee 
has  paid  the  endorser.  Dook  v.  Canve/l,  1  JIayxv.  Rep.  18.  Strong  v.  Spear,  ibid. 
214. 

Though  only  one  satisfaction  can  be  recovered,  execution  for  costs  may  be  issued 
in  all  the  actions  broughl  against  the  several  parlies  to  a  promissory  note.  Turin  v. 
Morris,  2  Dull.  Rep.  115.  Gilmore  v.  Carr,  2  Mass.  Rep.  171.  Porter  v.  Ingra- 
ham.  10  Do  88. 

Where  one  sett  of  a  bill  of  exchange  is  returned  after  protest  for  non-acceptance 
to  the  drawer,  it  dt-strovs  the  negotiability  of  the  other  setts.  Ingraham  v.  Gibbs 
etal.  2  Dalt.  Rep  134. 

Ill  bdls  drawn  in  the  United  States  payable  in  Europe,  the  custom  of  merchants 
in  this  country  does  not,  it  would  seem,  require  in  a  protest  for  non-payment,  that  a 
protest  for  n'>n-;>cceptanci'  should  be  produced,  the  bills  were  not  accepted.  Brown 
V.  Barni,  4  Dull.  Rep.  365.  Clarke  v.  Russel,  3  Do.  415.  Vide  TVilson  v.  Lenox, 
1  Cranch's  Rep.  195. 

AVhether  indebitatus  assumpsit  will  lie  by  the  endorsee  of  a  bill  of  exchange 
against  iIk-  endorser.    TFood  v.  Luttrell,  I  CalPs  Rep.  232. 

In  Virginia,  debt  will  not  lie  Mgainst  the  acceptor  of  a  bill  of  exchange.  Smith  v. 
Segar,  3  Hen.  &  Munf.  Rep.  394. 

DaniMgiS  are  to  be  recovered  on  a  bill  according  to  the  law  of  the  place  where  it 
is  drawn.  Schermerhorn  v.  Pelham,  Rep.  in  Co.  of  Conf.  454. 

One  partner  niaj  sae  on  a  note  endorsed  to  him  by  the  other  partner  in  the  name 
ofthefirni.  Sneed\.J\1itcheWsexrs.  1  Hayio  Rep.  289. 

Whether  on  a  count  for  money  had  and  received,  notice  of  non-acceptance  or 
non-payment  be  necessary  to  charge  an  endorser  who  knew  at  the  time  of  the  en- 
dorsement the  drawer  had  no  right  to  draw.  Femoick  v.  Sears,  1  Crunches  Rep. 
260. 

In  Virginia,  an  endorsee  of  a  promissory  note  cannot  maintain  an  action  against  a 
?'e?nofe  endorser  for  want  of  privity.  Mandevilley.  Riddle,  ibid.  290.  Vide  Dtin/ap 
V.  Silver,  ibid.  S&T. 

In  Maryland,  debt  will  not  lie  on  a  promissory  note.  Undo  y.  Gardner,  ibid. 
343.  Vide  ibid.  ,S64. 

A  protest  is  not  necessary  to  charge  an  acceptor  with  the  principal  of  a  bill  of 
exchange,  but  it  is  materially  so  to  charge  with  interest  for  non-payment.  Lang  v. 
Brailsford,  I  Bay's  Rep.  222. 

A  foimal  protest  by  a  notary,  is  not  necessary  in  the  case  of  an  inland  bill  of  ex- 
change or  a  note.  Payne  v.  Winn,  2  Bay''s  Rep.  374. — Am.  Ed. 

(r)  Bank  checks  are  not  within  the  Act  of  Congress  of  6th  of  July,  1797,  laying  a 
duty  on  stamped  paper.     Convoy  v.  Warren,  3  Johns.  Cas.  259. — Am.  Ed. 


WRITTEN  CONTUACTS. 


34.1 


tor  though  the  instrument  is  voitl,  the  law  implies  a  promise  to  ch.ii.  s.  i. 
Dav  the  money  due  on  the  consideration.  ^'^  biiisof 

*^   *  ,  .        ,  .      ,  f.  .       r        »  exchange, &c. 

The  first  and  most  simple  case  is  that  ot  an  action  by  the  payee, 

against  the  maker  of  a  note,  or  acceptor  of  a  bill  of  exchange.     In 
this  case  the  only  proof  necessary  is,  that  the  name  subscribed 
to  the  note,  or  acceptance  of  the  bill,  is  the  hand  writing  of  the 
defendant,  or  that  of  some  person  specially  authorised,  or  usually 
entrusted  by  him,  to  sign  such  instruments,  or  if  in  the  case  of 
a  bill  the  acceptance  were  verbal,  the  circumstances  under  which 
it  was  made.     By  accepting  the  bill,  with  sight  of  it,  the  hand  Wilkinson  r. 
writing  of  the  drawer  is   admitted,  and  therefore  need  not  bey"^^^"'J!'|g'^' 
proved ;  but  if  the  bill  were  never  shewn  to  the  acceptor,  the 
hand  writing  of  the  drawer  must  be  proved  also.     It  was  long 
considered  as  a  general  rule,  subject  to  no  exception,  that  it  was 
not  necessary  to  prove  any  presentment  for  payment,  in  an  ac- 
tion against  the  maker  of  a  note,  or  the  acceptor  of  a  bill.     A 
practice,  however,  having  been  adopted  of  late  years,  of  making 
notes  payable  at  a  particular  place,  and  of  accepting  bills  so  pay- 
able ;  several  cases  came  before  the  different  Courts,  and  not  only 
were  some  nice  distinctions  taken,  but  a  difference  of  opinion 
prevailed  between  the  Courts  upon   the  subject.     At  length  auowei^. 
case  went  by  writ  of  error  to  the  House  of  Lords,  where  it  was^"""^'^- ^• 
solemnly  decided,  that  if  an  acceptance  be  made  on  a  bill  pay- 
able at  a  particular  place,  the  plaintiff  in  his  declaration  must 
aver,  and  of  course  prove  on  the  trial,  a  presentment  for  pay- 
ment at  that  place.     The  like  evidence  would  be  required  in  an 
action  against  the  maker  of  a  note  payable  at  a  particular  place; 
though  in  some  cases,  prior  to  the  above  decision,  a  distinction 
had  been  taken  between  its  being  made  so  payable  in  the  body 
of  the  note,  or  by  a  separate  memorandum  on  another  part  of 
the  paper,  on  which  the  note  was  written.(l)     But  though  it  is  (i)  Edwards 
necessary  in  these  cases  to  prove  a  presentment  at  the  place  ^^'^io. 
appointed,  yet  it  is   not  incumbent  on  the  holder  to  prove  that 
notice  of  the  refusal  was  given  to  the  acceptor,  whether  the  action 
be  against  him  or  against  the  endorser  ;(2)  For  the  presentment  at  (2)  Smith  v. 
the  place  appointed  is  a  presentment  for  the  agent  of  the  maker  ji^'^^j^Jj^'^' 
or  acceptor  who  has  appointed  that  place  for  payment,  for  whose  Treacher  ■? 
default  he  must  be  answerable  without  further  notice.  naon, 

If  the  action  be  brought  by  an  endorsee,  it  is  also  required  to 
prove  the  hand  writing  of  the  first  endorser,  and  of  the  others 
likewise,  if  their  endorsements  are  stated  in  the  declaration  ;  but 
if  not  so  stated,  the  proof  of  the  first  endorsement  only  is  neces-  Chester  i^T 
sary.(3)    This  evidence  is  sufficient  in  common  cases  :  but  where  ^^P-  ^54. 


34;3  ASSUMPSIT. 

Part  II.     a  bill  or  note  has  been  stolen  from  the  real  owner,  or  given  on  a 
On  bills  of  jj  j^  consideration,  it  will  be  incumbent  on  the  holder  to  prove 

excnaiigi ,  kc.  '  r 

that  he  had  received  it  bonajide  for  a  valuable  consideratiou  ;(1) 


(i)Peacnck    ^^^^  this  will  now  make  the  note  good  in  his  hands,  though  ori- 
r.  Rhodes,      ginally  tainted  with  usury. (^2)     If  founded  on  the  consideration 
of  money  won  at  play,  it  still  continues  void  against  the  luaker 
(2)  Stat.  58.^  Qp  acceptor,  though  in  the  hands  of  an  innocent  endorsee  ;(3)  but 
*  the  payee  or  drawer  to  whom  it  was  given  for  money  won  by 

(3)Bowyerr'.yj^   and  who  endorses  it  to  a  third  person  for  good  considera- 

Bstrnplnn,  2  '  •  i'  i  i  i 

Stra.  1155.  tion,  cannot,  on  payment  being  refused  by  the  maker  or  accep- 
r4^  Edwards  *^'''  ^^^^  ^he  original  want  of  consideration  a  defence  to  the  ac- 
■y.  Uick,  4       tion  against  bimself.(4) 

212''  '  In  actions  against  the  endorser  his  endorsement  must  be  prov- 
ed, and  also  that  the  bill  was  presented  for  payment  or  accep- 
r).  Judge,  2  tance,  and  refused,  and  that  due  notice  was  given  to  the  defen- 
H.  Bia.  509  jj^jj^  jjf  j]^^^  f^j.^  .  vvhich  may  be  done  by  proof  that  a  letter  con- 
(6)ShawT^.  taining  such  notice  was  put  in  the  post-office,  and  directed  to 
P^' k'^'i^'p  '^^'"  '(^)  ^^^  ^^  evidence  can  be  given  of  such  letter,  without  no- 
i65.Langdon  tice  to  the  defendant  to  produce  it.(6)  The  hand  writing  of  the 
Esp^CaV^se  drawer,  and  all  previous  endorsers,  being  admitted  by  the  de- 
fendant's endorsements,  need  not  be  proved.(7) 
?p^crsTik.  '^^^  ^^^^  evidence,  and  also  the  defendant's  hand  writing, 
127.  Lord  must  be  given  in  an  action  against  the  drawer. 
^rltMo^^v  ^"  t'^^  ^^^^  ^^  foreign  bills,  the  non  payment,  &c.  by  the  drawee 
Pany,  2  can  be  proved  by  no  other  evidence  than  the  protest  ;(8)  which 
amp  .  -.  ppQ^gg^^  jf  made  in  a  foreign  country,  proves  itself  without  fur- 
(s)  Gale  7-.^     ti^er  evidence.v9),'s) 

WmIsI),  5  1.  '^ 

Rtp.  239.  ' 

S45.  Ante-  (*)  A  *"''  drawn  in  the  U.  Slates  on  any  part  of  the  U.  States,  is  an  inland  bill. 

110.  Miller  \.  Hackley,  5  Johns.  Rep.  375.     Contra  Lonsdale  v.  Brown,   C.  C.  Oct. 

182 1,. 11  S. 

A  bill  ol  exchange  drawn  by  a  person  in  Charleston,  on  a  person  in  JV.  York,  is  a 
foreign  bill,  ami  if  ni>t  protested  for  non-acceptance,  though  notice  be  given  of  its 
being  dishonoured,  (he  holder  makes  it  hisown  and  discharges  the  endorser.  1  Rep' 
Co7ist.  Ct.  S.  Car.  100. 

A  bank  check  is  substantially  an  inland  bill  of  exchange,  and  the  rules  which  are 
applicable  to  the  one,  are  generally  applicable  to  the  other.  Crnger  v.  Armstrong 
etal.  3  Joh7is.  Cas.   5. 

A  protest  for  non-payment,  must  appear  under  a  notarial  seal ;  but  it  is  not  ne- 
cessary that  the  non-acceptance  should  be  certified  in  the  protest ;  for  that  may  be 
sufficiently  established  by  other  evidenee.  Jliorris  v.  Foreman,  1  Dall.  Rep.  193. 

Protest  in  case  of  non-payment  or  non-acceptance,  is  unnecessary,  in  the  case  of 
an  inland  bill  of  exchange.  J[fiUer\.  Hackley,  5  Johns.  Rep.  375. 

After  bill  has  betn  protested  for  non-acceptance,  and  due  notice  given,  protest 
aud  notice,  incase  of  non-payment,  are  not  necessary  to  cliarge  the  endorsers,  ibid. 


WRITTEN  CONTRACTS.  gAo 

If  several  partners  draw  a  bill  in  the  name  of  the  firm  upon  ch.  n.  s.  i 
one  who  is  a  member  of  it,  no  notice  of  the  dishonour  is  neces-    ^"  bills  ot" 
sary,  for  each  must  be   presumed  conusant  of  the  acts  of  the  1^    "^^'    '^' 
other  ;(l)(l)  and  in  the  common  case  of  a  bill  drawn  by  ./?.  on  B.  ^^  p^^   , 
where  the  drawer  said  before  the  bill  became  due  that  it  would  ^^-  Parker, 
not  be  paid,  it  was  held  to  be  unnecessary  to  give  any  notice  to    ''"'^'   "' 
him  of  the  subsequent  dishonour.(2)     So  if  the  drawer  have  no  (2)  Brett  tj. 
effects  in  the  hands  of  the  drawee  at  the  time,  proof  of  this  fact  East^  213. 
will  excuse  the  want  of  notice  to  the  drawer  in  the  case  of  an  ,  ,„  . 

•iju-ii  e  •  r       •  1-  (SlBicker- 

mland  bill,  or  or  a  protest  in  a  foreign  one;(3)  though  in  an  ac-dikew.  Boii- 
tion  against  the  endorser,  who  has  no  concern  with  the  accounts '"'*°'  LT' 

IvCP,  409. 

between  the  drawer  and  acceptor,  the  regular  evidence  must  be 
given  ;(4)  but  even  here  if  the  endorser  expressly  promise  to  pay  (*\^p''^?.^* 
it  after  its  dishonour,  this  is  sufficient  to  charge  him,  whether  N.  P.' 202, 
such  promise  be  made  to  the  plaintiff,  or  any  other  person  at  that  5,  r     r 
time  a  holder  of  the  bill. (5)  Robertson,  ?• 

When  the  drawer  brings  an  action  against  the  acceptor  for  not  Pouer  t;^'R 
paying  the  bill  to  a  third  person,(6)  or  his  order,  he  must  prove  worth,  13 
the  acceptance,  that  the  bill  was  presented  for  payment,  dis-    "*''   ^^* 
honoured,  and  returned  to  him.    The  bare  production  of  the  bill  (6)  Simmonds 
with  a  receipt  endorsed  on  the  back  of  it,  will  not  be  sufficient,  )\v^[s™l'8|''' 
for  that  is  primafacie  evidence  of  a  payment  by  the  acceptor.(7) 

{7)  Scholey 
V.  Walsby, 

Of  the  evidence  in  actions  on  policies  of  assurance.  25^,'        ^' 

Another  simple  contract^  which  is  always  reduced  into  wri-p_,j  .      j. 

ting,  is  a  policy  of  aSSUrance.(l<)  Assurance. 

A  protest  of  an  inland  bill  or  promissory  note  is  not  necessary,  nor  is  it  evidence 
of  the  facts  stated  in  it.     The  Union  Bunk  v.  Hyda,  6  Wheat.  Rep.  572. 
'    The  certificate  of  a  notary  public,  under  his  notarial  S'-al,  is  ^(vmayaa'e  evidence, 
that  the  person  who  uses  it,  and  signs  a  ceriificate,  is  a  notary  commissioned  by  the 
Governor.     Browne  v.  Phil.  Bank,  6  Hei'g.  &  R.  Rep.  484. 

A  notarial  protest  is  evidence  of  notice  to  (he  endorser  of  a  promissory  note,  and 
non-payment  of  the  drawer,  262c/. — Am.  Eo. 

(<)  If  one  partner,  in  a  voyage  on  joint  account,  be  authorised  by  the  others  to  take 
money  on  the  credit  of  the  whole  concern,  and  draw  bills  therefor  on  a  house  in  Am- 
aterdam  /AViA  the  partner  take  up  money  anddraw  a  bill  for  the  same,  directing  it  to 
be  charged  to  the  account  of  all  tlw  partners,  but  it  is  signed  by  himself  only,  it  seems 
such  hdl  is  binding  on  all  the  partneis;  at  least  equity  will  enibrce  payment  thereof 
against  all  the  partners,  in  favour  of  the  payee  of  the  bill,  who  has  trusted  the  mo- 
ney on  the  faith  of  the  joint  credit.  Van  Reimsdyk  v.  Kane,  I  Gall.  Rep.  630.- 
Am.  Ed.  ^ 

Insurance, 
{u)  The  digest  of  cases  on  the  law  of  insurance,  are  collected  in  as  small  a  space, 
as  their  number  and  importance  will  admit. 


Policies  of 
assuraoce 


34,<j|;  ASSUMPSIT. 

Part  II.  To  support  liis  action  on   this   instrument  the  plaiutift"  must 

prove  the  defendant's  subscription,  and  the  interest  of  the  plain- 
tiff or  other  persons  in  whom  the  interest  is  stated  to  be.     The 


The  policy  and  its  construction. 

The  lisk  undertaken  in  a  policy  of  insurance  is  to  be  described  with  reasonable 
and  convenient  certainty,  and  the  insurers  are  not  liable  for  any  loss  incurred  in  any 
voyage  or  risk,  materially  difTereut  from  the  risk  described.  Jilanly  v.  The  TJ. 
States  Marine  &  Fire  Insurance  Company,  9  Mass.  Rep.  85. 

A  respondentia  interest,  as  well  as  a  bottomry,  must  be  specifically  described  iu 
the  policy.    Jennings  v.  Ins.  Camp.  Penn.  4  Binn.  Rep.  244. 

All  goods,  the  traffic  in  which  is  not  prohibited  by  the  law  of  this  country,  are 
lawful  goods  v/iihin  the  meaning  of  the  polity.  Seton  et  al.  v.  Low,  1  Johns.  Cas. 
1,  5.  P.  Gardiner  et  al.  v.  Smith,  ibid.  141.  Shidmore  et  al.  v.  Disdoity,  2  Johns, 
Cas.  77. 

A  contract  of  insurance  made  on  a  voyage  which  is  opposed  to  the  Common  Sta- 
tute, or  Maritime  laws  of  the  country  where  it  is  effected,  is  void.  Craig  v.  The 
U.  States  Ins.  Comp.  1  Peter's  Rep.  410. 

Sailmg  under  a  British  license  during  the  war  between  the  United  States  and 
England,  rendered  the  voyage  illegal,  ibid. 

A  factor  who  has  a  lien  on  goods  in  his  possession,  has  an  insurable  interest.  Rus- 
sell V.  The  Union  Ins.  Comp.  C.  C.  ,Mpril,  1806,  J>/.  5.  Rep. 

Although  they  be  contraband  of  war,  ibid.  Juhel  v.  Rhinelatider,  2  Johns.  Cas. 
12  0.  S.  C.  m  Er.  ibid.  487. 

Or  the  traffic  in  them,  prohibited  by  treaty  with  foreign  nations.  Seton  et  al.  v. 
Lotv,  1  Johns.  Cas.  1. 

Or  owned  by  the  subject  of  a  belligerent  nation.  Skidmoreet  al.  v.  Desdoity,  2 
.Johns.  Cas.  77. 

The  owner  of  a  vessel  mortgaged,  or  hypothecated,  has  an  interest  which  he  may 
insure  generally,  and  without  specifying  its  nature.  Kenny  v.  Clarksonetal.l  Johns. 
Rep.  385.     Higginson  v.  Dull,  13  Mass.  Rep.  96. 

Wht^re  the  policy  states  the  insurance  to  be  for  account  of  v4.  it  is  equivalent  to 
a  lepresentation  that  A.  is  owner.  Kimble  et  al.  v.  Rhinelander  et  al.  3  Johns.  Cas. 
ISO. 

If  any  of  the  terms  used  in  the  policy  have,  by  the  known  usage  of  trade,  or  by 
use  and  practice,  as  between  assurers  and  assured,  acquired  an  api)ropriate  sense, 
they  are  to  be  construed  according  to  that  sense.  Coit  et  al.  v.  Com.  Ins.  Comp.  T 
Johns.  Rep.  385. 

Goods  laden  on  deck,  are  not  covered  by  a  policy  on  goods  or  cargo,  unless  ex- 
pressly mentioned.     Lenox  v.  The  United  las.  Comp.  3  Johns.  Cas.  178. 

Quere,  Whether  a  parol  insurance  is  valid,  dubitatur.  Smith  et  al.  v.  Odlin,  4 
Yeates'  Rep.  468. 

To  determine  a  question  of  sea  worthiness,  the  nature  of  the  voyage  is  to  be  con- 
sidered.    Belly-  Readetal.i  Binn  Rep.  127. 

Where  a  master  oi  a  ship  insured  the  property  on  board,  whose  only  interest  was 
his  commissions  on  the  homeward  cargo,  it  was  held  that  such  commissions  were 
insurable.    Holbrookes  adm.  v.  Brown,  2  Mass.  Rep.  280. 

The  plaintiff,  in  e.xpectation  of  gouls  lo  be  shippt-d,  on  his  account  and  risk,  on 
board  a  certain  vessel,  effects  an  insurance  ;  no  such  goods  are  shipped,  but  certain 
other  goods  are  consigned  to  him  in  the  same  vessel  on  account  and  risk  ol  the  ship- 
pers, of  whom  the  plaintiff  was  a  creditor  and  general  agent ;  a  partial  loss  ensues ; 


WRITTEN  CONTRACTS. 


343 


interest  in  the  ship  may  be  proved  by  possession,  or  acts  of  own-  ch.  ii  s.  i. 
ership,  without  the  productiuii  of  the  register  ;(1)  and  indeed  the    ^"''«='t's  of 

_  .  .  ,  £•      1  !••«.,•  Assurante. 

certificate  of  registry  is  no  evidence  or   tlie  plaintin's  interest  

— — —  ( I )  Rob.  rlson 

but  the  nlaintiff  cannot  recuveraij-airist  llie  umK-rvvfitei'  for  sm-li  loss,  and  shnll  linve  "'"■'"'"•  \^^' 

1'.  1*  IV I  en 
a  return  of  pitniiuni      I'ofipav  \.  Jllkinsuii,ibitl  C->(i5.     JMiivruyetal  v.  Co/. /ns.  4  East    130 

Comp.  11  Johns.  Bep.  302.     Fontaine  v.  Fhosnix  Ins.  Comp.ihicl  293.  Yi.l.-  Park's 

Neither  a  loss  ot  the  pioceerls  of  the  out wm-d  cargo,  desti'oycl  b\  fire  at  a  foreign  Insurance, 

port,  nor  danias;^-  to  thi'  vessels  from  worms  and  climate,  nor  an  extraordinary  ex-  7  _ 

,.  i-     "    ■  ■        1,  »•      1      1        I        u        1'  u      I  Russel  V.   Bo- 

penditure  oti)rovisions  by  seamen  or  centitiels  placed  on  board  bv  the  gOTernmeut,  v.  .™j,   o  Stra 

nor  the  pnssibl  ■  earnings  of  a  %ess'-l  durjng  an  embargo,  are  losses   within  a  policv  H27. 

of  insurance,  against  the  usual  risks  on  a  vessel  and  cargo,  to,  at  and  from  a  foreign 

port,  for  the  pttrpo'-^e  of  selling  the  onttoard,  and  purchasing  a  return  cargo.     JVlar- 

tin  et  al.  v.  The  Salem  Ins.  Co.  2  Mass  Rep.  420. 

Where  a  vessel  is  insured  at  and  from  Calcutta  to  a  port  of  discha'-ge  in  tlie 
United  States,  and  was  proved  to  be  tiot-seaworlhy  rvhen  she  sailed,  yet  the  policy 
was  held  to  attach,  and  that  the  insured  were  not  entitled  to  a  return  of  premium. 
Taylor  y.  Lo-V'll,  3  Mass.  Rep.  331.  Wde  Peters  et  al.  v.  Phxnix  bis.  Co.  3 
Serg.&R.  Rep. '25. 

So,  where  a  policy  of  insurance  is  effected  on  t'fTects  on  board  a  ship  from  Jior- 
deaiix  to  India,  the  risk  to  finish  when  the  ship  siiall  have  safely  arrived,  tlie  caigo 
landed  and  invested  in  the  produce  of  India.  Another  insurance  is  effected  npon 
eftects  on  board  the  same  ship  in  India  to  a  port  of  discharge  in  the  United  States, 
with  liberty  to  stop  and  trade  at  tlie  Isle  of  France,  SJc.  the  risk  "to  comm'-nce 
when  the  outward  insurance  ceases,  which  it  was  understood  was  to  continue  till 
the  outward  cargo  of  merchandise  and  money  was  disposed  of,  and  the  return  caigo 
on  board."  The  ship  arrived  at  Sumatra,  disposed  of  part  of  the  cargo  for  pro- 
duce, with  which,  and  ihe  re-uainder  of  the  outward  cargo,  on  the  report  of  hosti- 
lities between  Great  Britain  and  France,  she  dejjarted  forlhe  Isle  of  France ,  where 
the  remainder  of  the  outward  carg'i  was  invested  in  the  produce  of  the  island,  and 
the  ship  arrived  safely  to  the  United  States,  ibid. 

It  was  held,  that  the  second  polic  aliacie-d,  and  therefore  that  the  premium  was 
act  r-'turiiable.      Ckveland  v.  Fettyplac:  et  al,  ibid.  392. 

An  insurance  "  on  the  ca'go  or  freight  of  a  ship  lioili  or  either  to  the  amount  in- 
sured, valued  at  the  sum  insured,"  is  an  insurarioe  of  fr.  ight  or-  cargo,  if  in  the  event 
of  assured  having  (-nly  one  species  of  interest  on  boani ;  and  if  he  have  both,  then  it 
is  an  insurance  upon  both,  pro(>uriionai>lv  to  thr  iul'  estsofthe  assured,  in  the  sub- 
jects respectively.     Fans  v.  J\''exuburijpoyt  Ins.  Co  ibid.  476. 

An  assignmeni  of  a  policy  wnhmit  iiiiiic  10  the  nnderwiiters,  vests  an  equitable 
inteiist  in  the  assignee       n  uk  field  v.  Martin,  3  Mass.  Rep.  558 

Same  point  in  JVI^w  Ynt'k.  Earl  v  Shaw.  1  Johns.  Cas  313.  Sed  vide  Carroll 
etal.  v.  The  Boston  Mar  Ins.  Co.  8  Mass.  Rep.  515. 

When  ail  insurunct  is  made  bv  one  in  his  own  name  onlv,  on  property  valued, 
and  it  afterwards  appeared  that  the  insured  was  owner  bur  of  a  moielv,  he  shall  re- 
cover but  a  moiety  of  the  sum  insured,  in  case  of  a  loss.  Dumas  v.  Jones,  iMass. 
Rep  647.  Russell  V.  The  JVew  England  Mar  Ins.  Co  ibid.  82.  Pearson  \.  Lord, 
6  Do.  81.     Lawrence  v.  Van  Home.  1  Caines^Rep.27(). 

Undira  policy  oh  a  chariot,  "fr-e  from  average,"  but  in  which  jettisons  make 
one  of  the  perils  insuted  against,  if  the  box  of  the  chariot  be  thrown  overboard  in  a 
Stnrni,  it  is  a  total  loss,  and  the  insured  is  entitled,  on  abandoning,  10  lecover  as 
for  such,  though  the  carriage  he  on  .ieck.  Jndah  v.  Randall,  2  .V.  Torh  Cas.  i?i 
£r.  .'i2*.  Gardiner  et  al.v.  Smith,  \  .Mjis.  Cas.  Hi  Vand'-nheiivel  \.  V.  States 
Ins.  Co    1  Johns.  Rep.  426      Moses  et  al.  v.  Col.  Ins.  Co.  6  Do.  219 

A  policv  on  goods  "until  tweniy-four  hours  after  they  are  landed,"  coatinues 

Yy 


346  ASSUMPSIT. 

Part.  IT  without  also  proving  possession.(l)  Where  the  insurance  is  on 
Assurance.  g"ods,  the  interest  in  them  has  been  generally  considered  as 
proved  by  production  of  all  the  usual  documents,  such  as  bills 


(I)  Pinet> 
Aiiderson, 


4  Taunt  652  t*^nty-four  hours  after  all  the  goofis  are  landed.  Gardiner  v.  Smith,  1  Johns.  Cos. 
'  141. 

If  a  policy  cont^uns  the  usual  warrant),  "  that  corn,  &c.  shall  be  from  average  un- 
der 7  per  cent,  unless  general,"  the  insured  can  nidv  recover  for  general  average, 
0!"  for  an  actual  as  disi'nguished  from  a  technical  t.i)\^\  loss,  he  Roy  v.  Governeur, 
ibid. '216.  JMaggrathet  al.  v.  Church,  \  Caiiies''  Rdp  196.  J^eilsonet  al.  v.  Col. 
Ins.    Co.  3  Do.  108.  S.  C     On  a  new  trial,  1  Johns.  Hep.  301. 

The  date  of  a  policy  is  not  conclusive  evidence  of  its  execution.  Earl  v.  Shaw, 
1  Johns.  Cas.  313. 

A  policy  with  a  written  clause  "  against  all  lisks''''  was  held  to  protect  the  insur- 
ed against  i-very  loss  happ'.  niiig  during  the  voyage,  except  such  as  might  arise  from 
his  fiwn  acts.      Goix  v.  Knox,  ibid  337. 

If  a  vessel  be  described  as  an  "  Jlmerican  ship,"  it  is  an  implied  warraniy  that  she 
\s  American,  ibid.  S.  P.  .Murray  v  The  U  States  Ins.  Co.  2  Johns.  Cas.  16S.  Bar- 
ker v.  The  Phoenix  Int.  Co.  8  Johns.  Rep.  237.  Vandenhenvel  v .  The  U.  States 
Ins.  Co.  '2  Johns.  Cas.  V27.  Reversed  iu  the  Court  of  EiTor.  ibid.  But  the  ground 
of  reversal  was  upon  the  question  of  thi-  conclusiveness  of  foreign  sentences.  Has- 
kin  v.  The  J\'".  York  Ins.  Co.  ibid.  173,  d.  ^Inckiey.  Pleasants.  2  Binn.  Rep,  370. 
Higgins  v.  Liver  more,  lA  Musi  Hep.  W6  Atherton  v.  Brow7ie,  ibid.  \  52.  Van 
de?iheiivel  \ .  Church,  2  Johns    Cas.  173,  n Viiie  ante,  105,  note  (z.) 

A  warranty  of  Jlmencan  property  amounts  to  an  engagement,  not  only  that  the 
property  was  .imericun,  at  the  time  ot  insurance,  bnt  that  it  should  not  lose  that 
char  .icter  dui  mg  the  vova^e,  by  any  act  or  omission  of  the  assured  or  his  agents,  and 
that  it  should  have  all  llie  necessary  documents  to  establish  its  neutrality,  if  ques- 
tioned, required  by  treaty,  oi-  by  the  law  of  nations.  Calbraith  v.  Grade,  C.  C. 
April,  1805,  M  S.  Hep.  Calhoun  v.  //;*.  Co.  Penn.l  Binn.  Hep.  293.  Griffith 
V.  Ins.  Co.  JV".  America,  5  Do.  46-i.  Ludlo-M  v.  Union  Ins.  Co.  2  Serg.  &  R.  Hep. 
119 

The  clause  of  warranty  "  free  from  any  charge,  damage,  or  loss,  which  might  arise 
In  consequence  of  seizure  or  detention  of  the  goods,  for  or  on  account  of  any  illicit 
or  prohibited  trade,''  was  introduced  into  the  pulicies  nf  this  cf)uiitry,  about  the  year 
1788,  to  picveni  disputes  cone  ruing  losses  by  seizure  for  breach  of  the  revenue 
laws  of  foreign  t'untries.      Smith  v.  Del.  Ins.  Co   3  Serg.  &  R.  Rfp   82. 

^\'hen  the  plaintiff  n.aj  r>cnver  thi  whole  amoiiiit  insured,  although  having  au 
interest  only  in  pait.     Vide  Davis  v.  Boardinan,  12  Muss.  Rep.  80 

A  polic)  contained  a  memoi  anduij  "  thai  salt,  kc.  ai^d  all  articles  that  art  perish- 
able in  their  own  nature,  are  warranted  by  the  assured  free  iromaverag.-  unless  ge- 
eral,  &c.  and  su<iar,  &e.  skins,  hides  and  tobacco,  are  warranted  fre'-  from  ave- 
age  un  ■■er  7  per  c  nt,  unless  general,"  a  quanlifv  of  deer  skins,  part  of  the  cargo, 
were  dani'ig  d,  by  which  a  loss  of  10  per  cent,  on  ;he  cargo  wa=  occasiom-d.  It 
was  held  that  the  deerskins  we.re  included  under  the  l-nst  clause,  and  thetefore  the 
assured  was  entitled  to  recover.  Bakeiuell  v.  Tlie  IT.  States  Ins.  Co.  2  Johns  Cas. 
246. 

A  vessel  insured,  with  an  exfeption  of  French  risks,  was  captured  by  a  French 
privateer,  and  after  being  detaini'd  four  days,  re-captuiid  bj  a  British  frigate,  and 
condemned  as  French  property ;  .it  was  held  the  insured  could  not  recover.  Roget 
V.  Thurston,  ibid.  ~i%. 

W'.ere  dried  fish  was  enumerate,d  as  free  from  average,  it  was  held  not  to  extend 
io pickled  ?if.h.     Baker  \.  Lvdloiv.  ibid.  289. 

Ill  a  pni.cy  on  a  vessel  at  a  distant  pori,  irom  whence  she  is  to  sail,  and  stated  to 
be  there  on  a  certain  day  ;  "  at  andfro.'n"  mean  the  day  ou  which  she  is  mentioned 


WRITTEN  CONTRACTS.  g^y 

of  parcels,  costs  of  outfit,  the  bilU  of  lading  signed  by  the  tnas-  Ch.  ii.  s.  i. 
ter,  specifying  the  goods  received  on  board,  and  for  whom  he  is  Xss'lranc'f. 
to  carry  them,  custom-house  clearances,  and   such  other  papers  _______ 

to  hi'  ihere,  and  the  policy  takes  effect  from  thence.      Kimble  v.  Boimie,  1  C'aines* 
Sep.  75. 

The  two  piT  cent,  deducted  tVom  a  total  loss,  is,  in  cases  of  disaster,  a  part  of  the 
premium,  ibid, 

A  gi'neral  policy  without  any  warranty  made  by  a  ncuti'al,  covers  war  risks  of 
all  kinds  and  against  all  countri'  s,  and  a  false  clearance  is  immaterial,  and  need  not 
be  disclosed.     BarrifivuU  y .  Churcfi, ibid. '2^7. 

Under  a  policy  on  goods,  the  insured  need  not  disclose  that  his  interest  is  oidy  of 
an  undivided  part,  hut  i;iay  recover  accorditie;  to  his  interests.  Laivrenc  et  til.  v. 
Vanhoime  et  al.  ibid.  '276.  Laiurence  v.  Sebor,  2  Do.'-ZOS.  Post  etal.  v.  The  J'hte. 
nix  Ins.  Co.  \0  Johns.  Rep  79. 

A  representation,  that  a  man  has  been  naturalised  "  since"  a  particular  time 
does  not  mean  "  ever  since."     Coulon  v.  Boiune,  I  Caines''   Re.b  288 

If  both  insured  and  insurer  on  a  policy  conlainini^  the  usual  close  of  warranty 
against  contraband  goods,  know  there  are  coniraband  ijoods  on  board,  the  warranty 
will  apply  only  to  the  goods  insured.      Bowne  v.  Shaw,  ibid.  489. 

In  a  policy  on  commissions  on  lawful  gooils,  the  wairanty  against  contraband  is 
not  broken,  though  the  assured  be  captain  and  consignee  of  illicit  articles,  shipped 
on  board  without  the  knowledge  of  the  underwriter.  Depcyster  et  al.  v.  Gardner, 
ibid.  492. 

In  a  policy  effected  in  JSTew  York,  on  goods  at  twelve  cents  per  pound,  the  weight 
will  be  determined  by  the  English  standard,  though  the  invoice  specify  the  weight 
to  be  French.     Grade  v.  Bowne,  2  Caines^  Rep.  30. 

A  voyage  from  one  port  to  another  through  an  intermediate  port,  where  the 
goods  are  to  be  landed  and  re-shipped  to  the  port  of  their  ulterior  destination,  may 
be  insured  as  a  voyage  from  the  fi'st  to  the  second  port,  without  mentioning  the 
third  port.     Steinbaeh  v.  The  Col.  Ins.  Co.  ibid.  129 

When  a  policy  is  clear,  certain,  and  unambiguous,  as  to  the  voyag-^-  insured,  pro- 
positions asking  the  rate  of  insurance  for  another  voyage,  cannol  b(  r-sorted  to,  to 
shew  that  the  vovage  insured  was  tmant  to  be  restricted  to  that  described  in  the  pro- 
position. Vandei~voort  et  al.  v.  Smith,  ibid.  155.  Hogan  \.  Del.  Ins.  Co.  C.  C 
April,  1806.  M.  S.  Rep.     Cheriot  v    liarker,  2  Johns.  Rep.  346. 

If  the  acting  partner  in  a  concern  of  two,  cause  an  insurance  to  be  effected  for 
the  amount  of  his  own  share,  and  the  policy  state  it  to  be  on  his  own  account,  but 
retain  the  general  printed  words,  "  whomsoever  eke  it  may  concern,"  the  insurance 
will  be  hell)  to  have  been  ms-de  on  ih'  joint  account,  if  such  at>pear  to  have  heea 
the  intention  of  the  assured  from  his  letters,  which  may  be  resorted  to,  though  ne- 
ver .thewn  to  the  unflerwriter,  who  subscribed  on  seeing  instructions  to  insure  oidy 
On  the  separate  account  of  the  acting  partner;  un^ler  such  circums'.aiiC' s,  if  the  po- 
licy be  for  hull  tht'  cargo,  and  on  caplur--  lialf  b-  cond-nmed  an''  ha!f  be  aci|Ui»ted, 
the  assured  can  recover  only  a  moiety  of  the  sum  uisured.  Laiurence  v  Seoor,  2 
Johns.  Cas.  203. 

If  an  insurarice  be  on  a  return  cargo,  hegini>ing  th'-  sdventure  «'  from  and  imme- 
diately after  loading  thereof  on  board  the  said  vessel"  Ml  the  port  of  destinalion, 
with  Ifceitv  to  touch  and  f ra<ie  at  the  ir.lermediaie  ports,  the  policy  will  not  co- 
ver the  outward  cargo  from  the  port  of  di-st-nation  to  one  of  the  intermediate  ports, 
though  the  vessel  was  oidlged  to  carry  it  th  re  i'l  coiisequ.  r.re  of  her  being  refus- 
ed permission  to  enter  that  of  her  destination.  Graves  v.  Marine  Ins.  Co.'Z  Caines* 
Rep  338 

If  the  articles  contained  in  the  memorandum  in  a  policy  respecting  corn,  &c.  phy. 
3ically  exist,  the  underwriter  is  not  liable  for  a  total  loss  on  account  of  their  being 


348  ASSUMPSIT. 

Part.  II.     as  may  be  thought  necessary  to  substantiate  his  right  to  the  pro- 

Assurance.     P^^'V" 

, The  plaintiff  must  then  prove  that  the  ship  sailed  on  her  voy- 


perfecily  rott<^n ;  and  when  ilie  fissured  r<-s>u  i-n  a  loss  of  voyage  to  warrant  his  re- 
covi'r> ,  he  should  shew  ■!  ni'isi  cli-ai  ly,  and  of  liiis  a  survey  is  always  proot  of  good 
fa. til.  JVeii.son  v.  The  Colwn.  Ins-  Co.  3  Caines''  Rep.  108. 

To  brill}; a  case  within  ihc  warn.nty,  tht-r-  nuiat  be  both  a  seizure  and  proof  of  an 
illiC.l  trade.  An  allegarion  ihal  the  st.izu:e  wus  mad.-  for  a  prohibited  trade,  is  not 
enough.  Sniil/i  v.  Delatuare  Ins.  Co.  3  Scr^.  &  R.  Rep.  Si. 

And  it  iiiusi  fxprtssly  api'Par,  by  the  sciitfocc  that  itie  goods  were  condemned 
on  account  of  dhcii  or  prohibited  trade.-  Faudel  et  aL  v.  Phosidx  Ins.  Co.  4  Serg. 
&  R.Rep   '29. 

Wheit  the  policy  provides  against  illicit  I  ade,  an'!  the  -vessel  is  allowed  by  the 
custom  house  to  clear  out  regularly  wi.h  il.u-ii.  ;»ilich-s,  yet  is  she  policy  thereby 
vacated.   Tucker  v.  Jv/ie/  ct  al.  I  .fohns.  Rep.  20. 

An  insurance  was  uftoted  wiih  the  fullownig  inemorandum  :  "  The  vessel  sails 
under  a  seu-letter,  wiihoui  a  regist'  r,  property  warraiit-d  American.''^  it  was  held 
parol  evidence-  could  he  admit  led  to  prove  what  was  meant  b>  a  sea-letti  r.  A  cer- 
tifieate  of  property  issued  at  the  ciisiom-house,  was  a  si-a-ieiter  within  the  m'-aning 
of  (he  polic) .  Sleight  v.  Rhiiielundu-  et  ul.  2  Johns.  Rep.  531.  Contra  S.  C.  in  Su- 
preni.-  Couri,  1  Johns.  Rep    l9i. 

It  a  policv  contain  the  wonls,  "  on  a  voyage  from  J\'e-a>  York  to  Barbadoss  and  a 
mai  ket,''  tlu-  insu  id,  by  ihe  usagt  ot  ih.e  West  India  trade,  has  linerl}  lo  go  bona 
Jide  (rom  is'.an"!  to  island  in  the  ll'est  Indies  \inu\  he  has  s.ud  the  whole  ot  his  cargo  ; 
and  he  maj  sell  m  pari  ol  iiis  cargo  at  one  island,  and  part,  at  another.  Max-iueU  v. 
Robinson  et  al.  ibid.  333. 

Where  a  vessel  was  valued  at  2,000  dollars,  and  msured  for  that  sum,  and  there 
■was  a  prior  insurance  for  3.000  duUais,  the  insured  was  allowed  lo  prove  thai  the 
vessel  was  worth  enough  to  cover  bmh  pnlicii-s    Kenny  v.  Clarkson  et  al.  ibid.  385. 

Wliere  a  printt  d  blank  policy  on  cargo  w  is  ns  d,  .iid  the  blank  filled  up  for  an 
insurance  on  profits,  ;'nd  the  valnaiion  in  wiiiing  taken  in  connection  with  the 
printed  words,  was  a  valuation  of  the  goods  and  not  of  the  pr^)fiis,  it  was  held  that 
parol  evidence  Was  inadinissilile  to  >  xpain  the  intmtion  of  the  parties,  there  being 
no  ambiguity  in  the  words  as  they  siood.  Jilunfordv.  Hailett,ibid.  433. 

Every  policy  on  piofits  must  of  iiecessilv  be  a  valued  policy,  ibid. 

Where  a  pidicy  contains  no  warranty  ot  nt-utrality,  or  of  the  character  of  the  ves- 
sel, the  insurers  take  upon  thinisi-hes  all  risks,  belligerent  as  well  as  neutral.  JE/- 
tijig  it  al  V.  Scott  et  al.  2  Johns.  Rep.  157. 

If  the  national  chariicter  of  a  vessel  be  not  warranted  or  represented,  it  is  not  in- 
cunibent  on  the  insurtd  to  shew  that  she  had  a  sea-letter,  or  other  proper  docu- 
ments on  board,  required  by  the  laws  of  the  country,  or  treaties  with  foreign  powers. 
ibid.  ' 

Goods  were  insured  from  ^AI'T'jVas,  in  the  island  of  Cuba,  "beginning  tfie  adven- 
ture, &c.  from  and  immediately  folloiving  the  lading  thereof  on  board  of  the  vessel 
at  J^'evitas  in  Cuba.''''  the  v^  ssel  siiled  with  a  cargo  of  goods  from  JVew  York,  and 
arrived  at  JS'evitas,  but  not  being  allowed  to  land  the  goods,  except  "a  tew  trifling 
articles,  she  sailed  from  J^Tevitas  with  the  outward  cargo  on  board  for  Jamaca.  and 
while  Jioing  there  was  wholly  lost  by  the  perils  of  the  sea.  It  was  held  that  X|ie  po- 
licy <lid  not  attach  on  the  outward  cargo,  which  continued  on  board  at  J^evitas,  and 
nniil  (he  vessel  was  lost,  and  tin-  insured  were  only  entitled  to  a  return  of  premium. 
Richards  v.  The  .Marine  Ins.  Co.  3  .Tohns.  Rep.  307.  S.  P.  Graves  et  al.  v.  Jtia- 
rine  Ins.  Co.  2  Caines'  Rep.  339. 

The  insurer  is  always  supposed  to  be  acquainted  with  the  situation  and  topogra- 


WRlTTEN^  CONTRACTS.  3^y 

age;  and,  in  case  there  be  any  warranty  in  the  policy,  that  .he  cii.ll.s.  i. 
has  complied  with  it ;  that  the  loss  happened  by  one  of  the  pe-  ^'^^^^^^^^ 
rils  mentioned  in  the  policy,  during  the  course  of  the  voyage, ^ 


phy  of  the  places  to  which  iht;  vessel  is  destined.  De  Longuemere  v.  JV*  York  Fire 
Ins  Co.  10  Johix.  Rep.  1'20. 

MisrepresentjUions  to  aff'Ct  a  policy  will  not  be  presumed.  Pine  et  al.y.  Va- 
nuriim  et  ul  3  Yeutes''  Rep.  .50. 

A  vessel  was  in'<ared  "  ai  and  from  Culcntta  to  JVl'w  York,  with  liberty  to  touch 
»t  Madras  for  trade,  and  to  lake  in  part  of  her  cargo  tliere;"  tl)e  vessc  I  went  to 
Madras,  and  sailed  from  thence  direct  to  JVew  York,  wiihoui  ever  going  to  Cal- 
cutta ;  in  an  action  brought  bv  the  insured  to  recover  buck  iheprt-miuni,  it  was  held 
he  was  entitled  to  recover  it,  as  the  risk  never  attached.  Murray  v.  The  Colum. 
Ins.  Co.  4  Joh?is.  Rep.  443.     ' 

Where  the  policy  nevt-r  attaches,  as  if  the  vessel  never  sails  on  the  voyage  insured. 
or  if  il  becomes  void  by  a  failure  of  the  warranty,  there  b' ing  no  actual  fraud,  the 
insured  is  en  I  itb  d  to  a  return  of  the  pre'nium.  Delavigney.  U.  States  Ins.  Co. 
\  Johns  Cas.SXO.  Thiqiiet  ^ .  Rhiiielan(kr,ibi(l  .Sfio.  Murray  v .  U.  Slates  Inn. 
Co. '2 /)o.  168.  Jackson  V.  Jv'  York  Ins.  Co.  ibid.  191.  Robertson  et  al.  v .  The 
United  Ins.  Co.  ibid  '250.  Forbes  \.  Church,  3  Do.  15'J.  Graves  v.  JMarine  Ins. 
Co  2  Cidnes''  Rep  339.  Murray  v.  Col.  Ins.  Co.  4  Johns.  Rep.  443.  Rtchardfs 
T.  Marine  Ins.  Co.  3  Do.  307. 

Under  the  usage  in  respect  to  missing  vessels,  interest  is  to  be  calculated,  in  all 
cases,  from  the  expiration  of  twelvf  monlhs  ami  thirtv  days  after  the  period  when 
the  v(-ssel  was  last  heard  of.  Hallet  et  al.  v.  Phcenix  Ins.  Co.  C.  C.  'Oct.  1808,  M. 
S.  Rep. 

A  Vessel  was  insured  from  .]\/eiv  York  to  JK'antz ;  th»  policy  contained  the  follow- 
ing clause  :  '*  Warranted  not  Jo  abandon  in  case  of  capture  or  detention,  until  six 
months  after  proof  th-reof,  or  -until  cundemnation;  alio  free  from  seizure  or  detention 
in  port,  and  not  to  abandon  in  consequence  'if  being  turned  away,  or  for  having  been 
canned  into  a  British  port.''''  The  shipsaiUfl,  and  had  her  re.^ist-r  endorsed  by  two 
British  cruisers,  '■  7iot  to  enter  any  port  of  France  ;"  having  met  with  a  gale  of 
wind  near  Belle  Isle,  she  went  tli-  re  for  a  pdot,  and  was  chased  bv  a  British  cruiser 
undi  r  the  isbnd's  lee;  and  bavrngtaki-n  apiloi  on  boaid,  she  lay  to  an  hour,  a  league 
from  the  shoi-e,  and  tiiirty  miles  tVo.n  A'antz.  in  consequence  of  the  fog;  and  while 
in  this  situation,  a  hagne  and  a  half  from  the  principal  fort,  and  nea'  ly  in  reach  of 
cannon-shot,  the  ship  vfras  taken  possi-ssioii  of  ny  a  French  armed  bo'^t,  carried  in 
unler  the  gnus,  claimed  as  a  prize,  and  condemned  under  the  Milan  d-cree  ;  this 
seizure  was  hi'ld  not  to  be  wiihin  the  m-  aiiing  of  the  cl.iuse  in  the  police,  that  the 
assured  wpre  entrtled  to  recover  for  a  total  loss,  and  (he  expenses  of  the  captain  in 
endeavouring  to  obtain  a  release  of  the  vessel,  inel^iiding  tile  wages  of  the  captain, 
from  the  ti'tiH  he  left  the  ship  till  he  arrived  at  ./Ww  York,  his  passage  mo'iey,  with 
commissions   nd  interest.   fVatsoti  v.  The  Marine  Ins    Co   7  Juhu.  Rep.  57. 

The  ins'ipf  r  on  a  ship  is  not  lial)le  foran'y  exitense,  spicificailv  and  (exclusively  for 
the  ben.  fii  of  the  cargo,  nor  for  any  sum  per  diem  agre-d  upon  by  the  owner  to  be 
allowi-d  th<'  captain  while  in  poit.  ibid. 

A  policy  on  merchandise  will  cover  a  curricle.  Duplenty  v.  The  Commercial  Ins. 
Co.  Anth.  J\r.  P.  Cas.  83. 

A  warranty  that  "orders  will  b-  givn  that  the  vessel  shall  not  cruise,"  is  not 
complied  with,  unless  such  orders  be  expi<-sslv  given  to  the  capiain,  and  an  impli- 
cation from  the  general  insli  nctions  wdl  n'lt  he  sufficient.  Ogdcn  \.  Jlsh,  i  Uall. 
Bep.  162. 

Where  a  policy  provided,  "  in  case  of  a  loss,  the  money  shall  be  paid  witliin  three 


350  ASSUMPSIT. 

Part  II.     and  by  the  means  stated  in  the  declaration.  In  cases  of  capture, 
Assurance*^   the  proceedings   in  foreign  Courts  are  often  necessary.     Their 


(1)  Ante,  09. 


effect  we  have  before  had  occasion  to  consider.(l) 


months  after  proof  of  tht  same,"  |)roof  must  be  made  to  the  insurer  three  months 
before  bringing  the  suit.  Cambevlingy.  JlPCall,  2  Dull.  Rep  280.  S.  C.  3  Do. 
kn.  2  Yeutes'  Rep.  281. 

In  ^«;era/,  houst  hrild  fiirniliire  will  b'-  considered  part  of  thf  cargo,  and  not 
baggage.  Vasse  v   Ball,  2  Dull  Rep.  270.    S.  C  2  Veates' Rep.  178. 

Ill  au  insurance  on  a  vessel  for  a  certain  term,  "  as  interest  •'shall  appear,''''  the 
premium  is  lo  be  augmented  or  diminished  according  to  the  actual  cargo  on  board, 
fro'M  time  to  time,  during  the  terra  insured.  Pollock  et  al.  v.  Donaldson,  3  DaU. 
Rep.  510. 

On  an  open  policv,  the  assured  are  entitled  to  recover  according  to  the  actual 
vnhie  of  the  pi  operty,  and  not  its  cost.  Snell  et  al.  v.  The  Delaware  Ins.  Co.  4 
Dall.  Rep.  430. 

If  the  policy  underwritten  in  Philadelphia  cnnxam  a  warranty  of  ^/jjmcarz  pro- 
perty, "to  be  proved,  if  required,  in  this  city,  and  not  elsewhere,"  the  assured  is 
entitled  to  vindicate  the  triilb  ol  his  warranty,  not  only  against  a  foreign  condemnation 
as  enemies'  property,  but  agamsl  ;t  condemnation  for  any  act  or  omission  of  his  agent 
during  the  voyage,  by  which  the  neutrality  is  alleged  to  be  forfeited.  Calhoimv.  Ins. 
Co.  of  Petuisylvania,  1  Binn.  Rep.  293.     Calbraith  t.  Grade,  1  Binn.  Rep.  296, 

Upon  an  insurance  for  goods,  the  underwriters  are  not  liable  for  freight  paid  by 
the  owners  of  the  goods  during  the  voyage.  Gibson  v.  The  Philad  Ins.  Co.  ibid. 
405. 

The  assignee  of  a  policy  takes  it  like  any  other  chose  in  action,  subject  te  all  de- 
falcations to  which  it  w!is  liable  before  the  assignment.  Roiissetv.  The  Ins.  Co  of 
J\''orth  Amenca,  ibid.  429.  Goiirdon  v.  Same,  3  Yeates''  Rep.  327.  1  Binn.  Rep. 
429,  n. 

A  policv  on  a  vessrl  contained  a  clause,  "  that  if,  after  a  regular  survey,  she  should 
be  condemned  for  being  unsound  or  rotten,  the  uiiderwriters  should  not  be  bound  to 
pay  their  subscription,''  the  survey  and  condemnation,  to  come  within  the  clause, 
must  shew  unsoundness  from  f/ecat/,  and  not  from  accident,  as  the  eating  of  rats. 
Garrigiies  \.  Coxe.l  Binn  Rep  592.  Armroydy  Union  Ins.  Co.  2  X)e.  394.  Et 
vide  Steinmilz  v.  U.  States  Ins.  Co.  2  Serg.  &  R.  Rep  293. 

A  vessel,  stated  in  the  policy  to  be  the  "  good  Bntish  brig  called  the  John,^*  was 
insured  at  the  usual  se^'-risk  premium,  from  Ilavanna  to  Baltimore,  with  a  written 
memorandum  at  the  foot  of  the  policy,  that  the  insurance  was  against  the  perils  of 
the  sea,  and  was  to  end  on  capture.  It  was  held  that  the  \vords  "  Bntish  brig," 
even  if  a  warranty ,  did  uot  impiv  that  she  was  a  British  registered  vessel,  but  merely 
that  she  was  owned  by  a  British  subject  ;  and  it  being  proved  that  the  owner  was 
a  Scotchman  by  birth,  and  that  he  navigated  the  vessel  under  a  clearance  and  license 
from  the  B'itish  custom-house  at  JVe-tv  Pror-idence,  this  was  sufficient,  prima  facie 
to  shew  that  he  continued  to  be  a  British  subject,  without  shewing  his  domicil. 
JHdckie  V.  Pleasaiits,  2  Binn.  Rep.  3fi3. 

If  the  insured  make  a  proposition  to  the  underwriters  to  cancel  a  policy,  which 
they  reji  ct,  and  afterwards  assent  to,  but  before  such  assent  reaches  the  assured, 
they  hf-ar  of  the  loss  of  the  vessel,  the  policy  is  not  cancelled.  Head  et  al.  v.  Pro- 
vidence  Ins.  Co.  2  Cranch''s  Rep  127. 

If  it  be  insert  d  in  a  i)olicy,  that  "  the  insurers  are  not  liable  for  seizure  by  the 
Portutritese  for  illicit  trade,  "  and  the  vessel  be  seized  and  condemned  by  the  Por- 
tttgiiese  government  for  an  attempt  to  trade  illicitly,  the  underwriters  are  not  liable 
for  the  loss.  Church  v.  Hubbard,  ibid.  187. 


WRITTEN  CONTRACTS.  35i 

In  losses  happening  by  the  perils  of  the  seas,  where  every  ch  ii.  s.  i. 

"       "  "         Policies  of 

Assurunce. 


person  perishes,  it  is  impossible  to  prove  the  actual  loss.  In  this    P'>l"="'sof 
case  presumptive  evidence  is  sufficient  ;(1)  proof  that  the  ship 


(1 )  Grei^n  v. 
Bi<)wn,2Stra. 


An  exclusion  of  the  risk  of  seizure  foi-  illicit   tiRtle,  means  a  lawful  seizure,  ibid.  ^i~-    ,  n*v 

V.  Keau.rark. 
236.  ' 

A  policy  in  the  name  of  one  Joint  owtit^r,  as  property  may  appear,  (the  policy  not 
stating  the  insurance  to  be  for  the  benefit  of  all  concerned,)  iloes  not  cover  the  in- 
terest of  ano^Aer- joint  owner.  Graves  v.  The  JMantie  Inn.  Co.  ibid.  419. 

Evidence  of  ih'-  knowledge  ihe  insurers  had  of  the  insured's  intention  at  the  time 
the  policy  was  <'ffected,  ovis^ht  to  be  very  clear  to  justify  a  Court  of  Equity  in  con- 
forming the  policy  to  that  intention,  ibid. 

If  a  policy  contain  a  cluuse,  "  that  if  the  vessel,  after  a  regular  survey,  should  be 
Condemned  as  unsound  or  rotten,  the  underwriters  should  not  be  bound  to  pay," 
a  report  of  surveyors  that  she  was  unsound  and  rotten,  but  not  referring  to  the 
commencement  of  the  voyage,  is  not  sufficient  to  discharge  the  underwi  iters.  J\Ia- 
rine  Ins.  Co.  v.  f'f'ilson,  S  Cranch's  Hep.  187. 

Whether  such  report,  even  if  it  relate  to  the  commencement  of  the  voyage,  would 
be  conclusive  evidence,  ibid. 

A  policy  on  a  ship  is  an  assurance  of  the  ship  for  the  voyage,  and  not  an  insurance 
on  the  ship  and  the  voyage.  The  underwrileis  undertake  for  the  ability  of  the  ship 
to  perform  the  vn\  age,  not  that  she  shall  perform  it  at  all  events.  Jllexander  y . 
Baltimore  Ins    Co.  4  Cranch''s  Rep.  370.   1  HaWs  .Tmer.  Law  Journal,  397. 

A  policy  will  be  construed  according  to  the  intent  and  meaning  of  the  parties, 
and  not  the  strict  letter.  Cross  et  al.  v.  Shutliffe  et  al.  2  Bay''s  Rep.  220. 

Loss  by  perils,  &c. 

• 

If  a  vessel  be  driven  into  a  port  of  necessity,  and  a  pestilential  disordei-  breakout, 
■which  renders  it  impossible  for  her  to  pursue  her  voyage,  it  is  a  loss  within  the  pe- 
rils of  the  policy.     Williams  v.  Sviit/i,  2  Caines''  Rep.  \. 

If  the  port,  to  which  a  vessel  insured  is  destined,  he  actually  blockaded,  it  is  a  pe- 
ril, withm  the  meaning  of  the  policy.  Schmidt  v.  The.  United  Ins.  Co.  1  Johns. 
Rep    249. 

A  vessel  was  insured  against  sea  risks  only,  from  JVeiu  Orleans  to  Cape  JVicholas 
.Mole,  and  from  thence  to  one  other  |)ort,  s«v  Port  Republican,  Cape  Francois,  or 
6'^.  Thomas;  during  the  voyage  she  met  with  bad  weather,  and  brcaine  leakv  ;  but 
yhile  she  was  in  sight  of  St.  Domingo,  and  when  Seventy  miles  off  Cape  JVicholas 
JWbfe,  she  was  turned  away  from  that  port  by  a  Briti.'ih  cryi\ser,  on  account  of  its 
being  blockaded  ;  she  then  proceeded  towards  .SV.  Thomas,  but  by  stress  of  weather 
■was  obliged  to  go  to  Jamaica,  where,  on  a  survey  she  was  conilemned  as  not  worth 
the  cost  of  repairs.  In  an  action  for  a  total  loss,  it  was  held  the  deviation  from  C  JV. 
Mole,  was  excused  by  necessity,  and  the  loss  afterwards  wasoccasioned  by  the  jjerils 
of  the  sea,  for  which  the  insurers  were  liable.  Robinson  v.  Col.  Ins.  Co.  2  Johns. 
Rep  89. 

A  leak  occasioned  by  rats,  without  the  neglect  of  the  captain,  is  a  peril  within  the 
policy.     Garrigues  v.  Co.xe,  1   Binn.  Rep.  592. 

II  the  loss  arise  from  the  ordinary  wear  and  tear  of  the  voyage,  the  underwriter  • 

IS  not  liable.  Aliter,  if  it  happen  in  consequence  of  the  violence  of  the  winds  and 
waves,  running  on  rocks,  or  the  like;  and  it  is  not  sufficient  for  the  insured  to  prove 
that  there  were  storms  on  tlie  voiyage,  unless  he  can  fiir  ly  trace  the  injury  sustained 
to  that  cause.     Coles  et  al.  v.  Mar.  Ins.  Co.  C.  C.  .^pril,  1812,  .1/.  S.  Rep. 


353  ASSUMPSIT. 

Part  II.  departed,  and  that  in  the  ordinary  course  of  such  a  voyage,  she 

Assu*^ance^  would  have  arrived  long  since,  is  sufficient  to  raise  a  presurap- 

-  tion  that  she  perished  at  sea. 


Losses  by  capture,  detention,  £Jc. 

Any  detention  by  Princes  in  amity,  embargo,  or  otherwise,  whether  the  capture 
be  just  or  unjust,  as  it  is  an  act  of  host  Hit)  ,  gives  a  right  to  the  insured  to  abandon 
for  a  total  loss.     Lee  v.  Boardman,  3  J\lass.  Rep.  238. 

A  capture  by  a  friendly  poxver,  in  contradistinction  from  a  capture  by  an  enemy, 
is  equally  a  gfjuiid  of  abandonment  by  tlie  insured.  JMurruy  v.  7'Ae  U.  States  Ins. 
Co.  2  Johns.  Cas  263.    Governeitr  v.  T/ie  U-  States  Ins.   Co.  1  Caines'  Hep.  592. 

In  case  of  a  restitution  of  goods  captured,  after  the  owner  has  abandoned  to  him 
in  the  port  into  which  his  vessel  is  carried,  he  is  not  bound  to  send  tliem  to  their  port 
of  destination.     Hordes  v.  Hallet,  ibid.  445. 

A  Vessel  and  cargo  were  insured  to  St.  Lucar,v:\i\\  a  clause,  "The  assurers  take 
no  risk  of  a  blockaded  port ;  but  if  turned  away,  the  assured  to  be  at  liberty  to  pro- 
ceed to  a  [)nrt  not  blockaded  ;"  this  clause  was  held  to  extend  to  any  loss  happening 
by  reason  of  a  blockaded  port,  whether  such  blockade  were  strictly  *legal  or  not. 
IiadcJiff\    The  U  States  Ins.  Co..7  Johns.  Eep.  i>S. 

AVhat  constitutes  a  lawful  blockade.?  ibid.     S   C.  9  Johns.  Rep.  177 . 

It  seems  that  the  accidental  and  temporary  dispersion  of  a  blockading  squadron 
by  a  storm,  is  not  a  suspension  of  a  blockade,  provided  the  fleet  use  all  due  diligence 
to  resun.e  its  station,  ibid. 

A  blockaile  must  e.xist  de  facto  to  render  it  unlawful  for  a  neutral  to  enter.  Wil- 
liams V.  Smith.,  2  Caines''  Rep.  1. 

Wherever  a  vessel  is  coiistraineil,  against  her  will,  to  break  up  her  voyage  by  a 
belligerent  vessel,  it  is  a  good  ground  oi  abandonment,  and  recovery  for  a  total  loss. 
Symo7uls  v.  The  Union  Ins.  Co.  4  Dall.  Rep.  417. 

Loss  by  barratry. 

In  an  action  on  a  Y>f'icy  averring  the  loss  by  barratry,  if  the  plaintifi"  shew  a  loss 
from  a  fiauduU-nt  act  ot  the  master,  the  presumption  of  law  is,  that  it  was  for  his 
own  benefit,  and  the  assured,  in  order  to  entiile  him  to  recover,  need  not  affirma* 
tively  pi  ove  it  to  be  so.     Kendrick  v.  Dehifield,  2  Caines^  Rep.  67. 

Under  a  warranty  against  seizure  on  accoutit  of  illicit  trade,  the  underwriter  is 
liable  for  a  loss  by  illicit  trade,  barratously  carried  on  by  the  master.  Suckley  v. 
Delufekl,  ibid.  ^Z2i. 

In  an  action  founded  on  the  barratry  of  the  master,  it  is  not  incumbent  on  the  as- 
sured to  prove  that  the  master  was  not  the  owner;  such  a  fact,  if  lelird  upon,  must 
be  proved  by  the  assure  r.     Steinbach  v.  Ogden,  3  Caines''  Rep.  1. 

A  fraudulent  sale  and  purchase  b>  a  master  of  a  vessel,  will  not  constitute  such 
an  ownei  ship  as  to  afford  a  def<  nee  to  a  claim  for  a  loss  by  his  barratry,  ibid. 

AVhere  the  owner  of  a  vess-l  ch.irters  her  to  the  master  for  a  certain  period  of 
time,  the  master  covenanting  to  Victual  and  man  her  as  his  own  cost,  he  is  to  be  deem- 
ed owner  ^)'o  hac  vice,  and  no  act  of  bis  will  amount  to  barratry  Hallettv.  Col.  lus. 
Co.  8  Johns.  Rep.  272.  Vide  Calhoun  v.  Ins.  Co.  Penn.  I  Binn.  Rep.  -193. 

A  person  contracting  and  dealing  with  a  master,  who  had  purchased  in  his  owner's 
vessel,  in  his  capacity  of  master,  may  recover  under  a  count  for  barratry,  a  loss  oc- 
casioned by  the  fraudulent  conduct  of  such  mastei .  ibid. 

M.  chartered  a  vessel  to  A,  and  B.  for  a  particular  voyage,  reserviog  half  ths 


WRITTEN  CONTRACTS. 


353 

No  precise  time  is  fixed  as  evidence  of  a  loss,  and  indeed  it  Ch.  ii.  s.  i. 
must,  in  every  case,  depend  on  the   Particular  circumstances :    P*'i'<='*'s  of 

•^  *  *  Assurance. 


cabio,  and  certain  privileges  for  master  and  mate,  and  covenanted  to  hire  the  crew, 
furnish  provisions,  &c.  The  master,  at  the  request  of  J},  who  was  on  ho;ir<l,  went 
out  of  the  course  of  the  voyage,  and  the  vessel  was  capluied  by  a  Spanish  privaieer; 
it  was  held  Af  continued  the  owner  of  the  vessel,  and  that  the  master  had  com- 
mitted barratry  for  which  the  assureis  were  liable.  J\tlntyre  v.  Bowne,  I  Johns. 
Rep.  '229. 

Bari-atry  is  a  fraudulent  act  committed  by  the  roaster  of  tlie  vessel  from  a  selfish 
and  sinister  design  to  promote  his  o^vn  interest,  wiihout  the  knowledge  or  consent 
bf  the  owner.  Crousillat  v.  Ball,  4  Dall.  Hep.  '294.  S.  C.  3  Ysates'  Rep.  375. 
Hood's  exrs.  v.  JVesbit  et  al.  3  Dall.  lief).  137.  S.  C.  I  Yeates^  Rep.  1 14. 

Barratry  is  an  act  committed  by  the  master  or  mariners  of  a  ship,  for  some  un- 
lawful or  fraudulent  purpose,  conti'^ry  to  their  duty  to  their  owners,  whereby  the 
alter  sustains  an  injury.  JMarcardier  v.  Chesapeake  Lis.  Co.  8  Cranch's  Rep.  39. 
The  insured  cannot  recover  for  a  loss  by  barratry,  unless  the  barratry  produced 
the  loss  ;  but  it  is  immaterial  whether  the  loss  so  produced,  occurred  during  the 
continuance  of  the  barratry,  or  afterwards.  Swan  v.  The  Union  Ins.  Co.  3  PVheat. 
Rep.  168. 

Any  trick,  cheat,  or  fraud,  and  any  crime  or  wilful  breach  of  law,  committed  by 
the  captain  to  the  pr-'yudice  of  his  owners,  is  barratry  ;  as  the  rescue  of  a  neutral 
vessel,  by  her  own  crew,  from  the  hands  of  the  captors,  who  are  taking  her  in  for 
adjudication.  Wilcocks  et  al.  y .  Union  Ins.  Co.  2  Binn.  Rep.  574.  Doedererv. 
The  Union  Ins.  Co.  C.  C.  .ipril,  'l  8U7,  M.  S.  Rep. 

The  crew  of  a  neutral  vessel,  captured  and  sent  in  for  adjudication,  are  not  oblig- 
ed to  navigate  her:  it  is  the  duty  df  the  captors  to  do  so  ;  if  they  fail,  they  do  not 
take  sufficient  possession  of  her,  and  the  neutrals  may  consider  her  as  abandoned  to 
them  ;  but  if  an  insufficient  force  be  placed  on  board,  in  consequence  of  a  promise 
by  the  neutral  crew  to  navigate  her  to  the  destined  port,  tliey  are  bound ;  and  if  in 
violation  of  their  promise,  they  take  the  vessel  into  their  own  hands,  it  is  an  unlaw- 
ful rescue,  and  an  act  of  barratry.  2  Binn.  Rep.  574. 

Partial  loss. 

An  insurance  was  made  on  goods,  and  a  separate  policy  on  the  profits  ;  the  ves- 
iel  being  captnretl ,  five-eighths  of  the  goods  were  restored ,  and  received  by  the  own- 
er; the  insured  abandoned  on  the  policy  on  the  pT'ofits,  but-cl;iimed  and  received  an 
average  loss  of  three-eighths  of  tbt-  goods.  It  was  h.  Id  he  could  nnly  recover  a  par- 
tial loss  of  thrc-eighths  on  the  profiis.  Boomis  et  al.  v.  TUlinghast,  2  Johns.  Cus.  3&. 

An  adjustment  of  a  loss  endorsed  on  a  policy,  and  signed  by  the  insurer,  is  not 
conclusive  if  it  be  made  on  the  misrepresentation  of  the  insured,  through  mistake  or 
design.     Faugier  v.  Hallett,  ibid.  233. 

An  a<ljusimcnt  made  in  a  foreign  country,  according  to  the  laws  thereof,  is  not 
conclusive  on  the  parties,  who  have  entered  into  the  contract  here,  who  are  govern- 
ed only  by  the  laws  of  JV'ew  York.  Lenox  v.  The  U.  Stages  Ins.  Co.  3  Johns  Cas. 
178. 

If  the  assured,  in  consequence  of  the  blockade  ot  the  port  of  destination,  accepts 
bis  goods  at  an  intermediate  port,  and  pays  lull  freight,  and  transports  them  by  li!;ht- 
ersto  the  port  of  discharge,  he  cannot  recover  from  the  underwriters  on  the  goods, 
either  the  expenses  and  freight  paid  for  thi  transportation  in  the  lighters,  br  a  pre- 
mium of  insurance  paid  for  the  risk  in  the  lighters.  Low  et  al.  v,  Ihivi/,  5  Binn. 
Sep.  595,  S.  C.  2  Serg.  &  R.  Rep.  553. 

An  aiijiistinent  made  on  a  full  disclonure  of  all  the  circumstances,  is  final,  thougli 
Zz 


gg^  ASSUMPSIT. 

Part  II.  but  by  the  practice  among  underwriters  a  ship  is  considered  as 

Policies  of  jQg^.  jf  pQj.  iigard  of  for  six  montiis  together,  on  a  voyage  within 

Assurance.  '  °  •'    ° 


Vide  Park.  Gi.sonof  of  them  may  be  svispiclous.    It  can  only  be  op-  ned  from  fraud,  or  a  mistake 
from  facts  not  known.     Dow  v.  Smith.  1  Caines'' Rep.  5i. 

Where  a  vessel  captured,  re-eaptured,  and  carried  into  a  port  of  ihe  country  to 
which  she  was  bound,  and  on  the  way  to  that  of  her  destination;  information  being 
received  of  all  these  circumstances  at  the  same  time,  the  assured  cannot  abandon  ; 
and  if,  in  sncii  case,  she  and  her  cargo  be  sold  at  auction,  the  chai  ges  of  sale  fall  on 
the  assured.     Aluir  et  al.  v.  [/.  States  Lis   Co  ibid.  49. 

If  a  vessel  be  captured  and  acquitted,  the  insurer  is  liable  to  the  expenses  in- 
curred in  prosecuting  an  appeal  interposed  against  the  sentence  condemning  the  as- 
sured in  costs,  and  to  obtain  compensation  for  damages  occasioned  by  plundering  or 
embezzling,  though  the  expenses  surpass  the  amount  of  the  underwriter's  subscrip- 
tion.    Lawrence  et  al.  v.  Vanhnrne  et  al  ibid.  276. 

Whether  such  expenses  be  reasonable,  is  a  matter  for  a  jury  to  determine.' iijV/. 

Though  an  adjustment  made  by  the  agent  of  the  underwriters,  do  net  preclude 
the  insurers  IVom  shewing  errors  in  it,  yet  if  they  do  not  dwsent,  they  will  be  bound. 
Hordes  v.  Hadet,  ibid.  444. 

In  making  up  an  account  of  a  loss  on  an  open  policy  of  insurajice,  the  insured  can- 
not charge  a  commission  on  the  purchase  of  goods  by  themselves.  Jhionxjinous ,  1 
Johns.  Rep.  312. 

Goods  were  insured  from  Aew  -York  to  Bordeaux, ihe  policy  contained  the  usual 
printed  clause,  •'  to  be  free  from  any  loss  which  may  arise  in  consequence  of  any 
seizure  or  detention  for  or  on  account  of  any  illicit  or  prohibited  trade,"  and  also  a 
written  clause,  "  warranted  not  to  abandon  if  turned  away,  nor  if  captured  till  con- 
demned ;"  the  vessel  on  her  voyage  Was  captured  and  sent  into  England,  where, 
on  the  18lh  J\ov.  1803,  the  ship  and  cargo  were  released,  and  the  ship  afterwards 
proceeded  on  her  voyage,  and  reached  Verdun,  at  the  entrance  of  the  Garonne,  ia 
France,  on  the  16ih  Jan.  1804.  The  vessel  Hod  cargo  were  seized  and  detained  by 
the  French  government,  and  she  not  suffered  to  unlaile  any  of  her  cargo,  and  after- 
wards ordered  to  leave  France,  as  she  had  come  direct  from  England ;  the  ship 
with  bet  cargo  proceeded  afti  rwards  to  St.  Sebastians  in  Spain,  where  part  was 
sold,  and  she  returned  in  ballast  to  Bordeaitx,  and  the  residue  of  the  caigo  unsold 
was  shipped  to  Bordeaux,  anil  there  sold.  On  being  advised  of  the  situation  of  the 
vessel  iind  cargo  at  Mordeaux,  the  insured  abandoned  as  tbra  total  loss,  on  the  18th 
j\Iav,  1804.  It  was  held,  under  the  written  clause  iu  tjie  policy,  the  insured  were 
only  entitled  to  recover.for  a  partial  loss,  for  expense*  and  average  from  the  time 
the  vessel  was  captured  uniil  her  arrival  at  Bordeaux.  Speyer  v.  JV'.  York  Ins.  Co. 
3  Johns.  Rep.  89. 

Quere,  as  to  lire  effect  of  such  a  prohibition  by  the  French  government,  without 
the  special  clause  in  the  polity  ?  ibid. 

Where  the  consignee  of  ;i  vessel  advanced  money  for  her  repairs,  and  took  a  bot- 
tomry bonii  with  mafiiie  interest,  the  insurers  were  held  liable  only  to  pay  the  ac- 
tual draouiu  of  the  repairs,  and  not  the  bottomry  bond.  Reade  v.  The  Commercial 
Ins   Co.  ibid.  352.  Jumel  et  al.  v.  Marine  Ins.  Co.  7  Johns.  Rep.  412. 

W  here  goods  insured  were  eaptuied  during  the  voyage,  and  the  vessel  was  re- 
leased, but  the  goods  detained  tor  further  pcoof,  and  were  afterwards  restored  oa 
payment  of  t'lll  freight ;  and  the  owner  was  obliged  atierwards  to  hire  another  ves- 
sel to  cart7  these  goods  to  the  place  of  destination  :  the  insurer  was  held  liable  to 
pay  the  additional  or  extra  freight,  being  necessarily  incurred  from  the  capture. 
JMumford  v.  The  Commercial  Im.  Co.  5  Johns.  Rep.  262. 

The  defendant  underwrote  an  open  policy  trora  P/uladelphia  to  JaTnaica,  on  a 
vessel  which  was  captured  and  recaptured,  and  taken  mio  Jamaica,  where,  by  agree- 


WRITTEN  CONTRACTS.  ggg 

any  part  of  Europe;  or  twelve  months,  if  bound  to  a  greater  ch. n.s.  i. 

tlUHnrP  Policies  of 

aiStance.  Assurance. 


ment  of  the  parlies,  without  goini;  aito  the  a<lmii'alty,  she  was  solil  at  public  sale  for 
one-fourth  of  the  sum  insured,  aud  bought  hy  the  cuptors  for  the  original  owners, 
■who  afterwards  acquiesced  in  the  purchase,  and  now  sued  for  a  total  loss.  It  was 
held  the  insured  could  only  I'ecover  for  the  salvage,  charges,  and  loss  of  time.  Story 
et  al.  V.  Siiettell,  1  JDall.  Eep.  10.  •    . 

In  ci'  rtain  cases,  it  is  not  requisite,  in  order  to  recover  an  average  loss,  that  the 
plainiifT  should  produce  the  invoice  or  prime  cost  of  goods  damaged.  Jicnlaloes. 
Pratt,  1  Wall.  Rep.  61. 

In  an  action  on  a  policy,  where  the  plaintiff  declai'es  for  a  total  loss,  and  proves  a 

.  capture  and  condemnation  of  property  which  he  has  never  abandoned  ;  the  jury  may 

estimate  the  value  of  the  spes  reci/peru7uii,  deduct  it  from  the  whole  sum  insured^ 

and  find  the  remainder  as  a  partial   loss.     Watson  ?t  al.  v.  Tlie  Ins.  Co.  of  JVortli 

America,  1  Binn.  Rep.  47.  S.  C.  4  Ball  Rep.  283. 

TiLGHMAN  C.  J.  says,  in  Brown  v.  Phanix  Ins.  Co.  ^  Bum.  Rep.  464,  "  ihat  he 
does  not  consider  the  law  as  settled  by  this  decision.  There  are  weighty  objections 
to  the  principle  adopted  by  the  Court  in  this  case." 

It  depends  on  the  particular  circumstances  of  the  case,  whether,  if  the  vessel  be 
captured  and  re-captured,  the  loss  will  be  deemed  total  or  partial.  Afarine  Ins.  Co. 
\.  Tucker,  o  Crancli's  Rep.  357. 

The  usage  of  trade  may  be  proved  by  parol  evidence,  although  such  usage  origi- 
nated in  written  law  or  an  edict  of  the  government  of  the  country  where  it  prevails. 
And  no  acts,  justifiable  by  the  usage  of  trade,  and  done  by  the  insured  to  avoid  con- 
fiscation under  the  laws  of  the  country  where  she  is  trading,  will  avoid  the  policy. 
Liviiigsfofi  ei  al.  v.  Marijland  ins.  Co.  7  Cra?ich's  Rep.  506. 

Totat  loss, 

A  vessel  insured  is  taken  by  a  French  cruiser,  re-taken  by_a  British  frigate,  libel- 
led in  the  English  Court  of  Vice-admiralty,  and  decreed  to  be  sold  for  payment  of 
salvage;  the  master  purchases  her,  returns,  and  delivers  her  to  Ihe  assured,  who, 
without  any  abandonment,  credits  the  underwriters  with  the  proceeds  of  the  sale. 
It  was  held  to  be  a  total  loss  ;  that  the  underwriters  are  entitled  to  the  nett  pro- 
ceeds of  the  sale  received  by  the  master,  and  to  no  more ;  that  the  assured  wer^  not 
bound  to  abandon,  but  may  retain  the  vessel.  Storer  v.  Gray,  2  JMass.  Rep,  565. 

To  constitute  a  technical  total  loss  <if  a  ship  from  the  perils  insured  against,  she 

must  be  injured  to  the  amount  of  Aa//'her  value,  or  more,  after  deducting  the  one- 

ttdrd  old   for  new  allowed  tKe  undei-writers;  or,  in   other  words,  she  must  be  in- 

j  lired  to  the  extent  of  three-fourths  of  her  value,  or  more.  Sviith  v.  Bell,  2  JV  York 

Cas.mEr.  153. 

Where  the  assured  recovers  for  a  total  loss,  the  sum  shall  be  the  invoice  price  of 
goods,  without  deducting  the  drawbiick  allowed  on  exportation.  Gahn  et  al,  v. 
Broome,  1  Johns.  Cas.  120.   , 

Where  a  ship  being  insured,  was  compelled  on  her  voyage  by  storm  to  put  in  for 
repair,  her  cargo  was,  for  fear  of  being  spoiled,  sold,  and  the  voyage  broken  up; 
but  the  vessel  might  have  been  repaired  for  less  than  half  its  value  ;  it  was  held  that 
these  facts  did  not  entitle  the  insured  to  recover  for  a  lotal  loss  on  the  policy  on  the 
ship.   Goold  et  al.  v.  Sha-w,  ibid.  293. 

An  insurance  was  made  on  goods  from  JWw  York  to  Barracoa,  with  liberty  to 
touch  at  one  or  tWo  ports  north  side  of  Cuba,  to  continue  until  the  cargo  was  safely 
landed  at  thf  se  places  ;  the  vessel  arrived  at  Barracoa  on  the  20th  June,  and  staid 
•here  till  the  30th  October  following,  without  being  able  to  sell  but  a  small  part  of 


356  ASSUMPSIT. 

PHi-tll.         Where  the  defendant  adjusted  an  account  of  an  average  loss, 
As°urlnce     ^"^  indorsed  the  policy  thus,  viz.  "  agreed  to  pay  44/.  6s.  6d. 


Garron  r. 


r  ih       h  ^^^  •="'S°j  3"^  •*"'  ^''y  goods  of  the  insurer!  ;  the  vessel  was  forcibly  entered  by 

Guildli  s'it-  pirates,  who  carried  away  4780  doliiii'S  in  muney,  and  a  great  quantity  of  goods;  she 
tino-  after  'I',  then  set  sail  for  Havanna,  but  whs  comp'-iird  hy  distress  to  put  in  at  JVew  Provi- 
25  Geo.  3.  deuce,  where  the  Temainitig  gfwds  werf-  sold  for  3701  dollars,  the  invoice  amount  ot 
M.S.  the  cargo  being  16,500  dollars;  the  voyage  b-ing  broken  up,  an  abandonment  was 

made  for  a  total  loss,  and  the  plai:itiff  was  h'  Id  entitled  to   recover  for  a  total  loss. 
Gilfert  v.  Halktt  et  al.  2  Joh7is.  Cos.  296 

If  a  vessel  be  rendered  \>\  the  perils  insured  against,  unable  to  proceed  with  her 
original  cargo,  it  is  a  loss  of  ll»e  vo^  ajf,  though  she  may  be  able  to  perform  it  with 
another  more  buoyant.  Abbott  v.  Broome,  I  Catties''  Rep.  292. 

Where  a  vessel  and  cargn  were  captured,  and  the  proceedings  in  the  Admiralty 
Court  were  against  the  whole  cargo  and  part  condemned,  and  the  residue  released, 
and  to  prevent  an  appeal,  and  avoid  further  detention,  the  master  agreed  to  pay  a 
specific  sum  as  a  ransom,  and  sold  a  part  of  the  cargo,  being  more  than  a  moiety  of 
the  part  insurtd,  to  defray  the  expi-nses  and  pay  the  ransom  ;  it  was  held,  that  the 
sufti  paid  for  the  expenses  and  ransom  was  not  general  average  ;  but  must  be  borne 
by  the  cargo  alone,  that  the  assured  was  entitled  to  recover  as  fol-  a  total  loss.  Van- 
denheiivel  y .  The  United  States  Ins.  Co.  1  Johns.  Rep.  406. 

M'here  the  vessel  and  caigo  were  captured,  and  the  owner  of  the  goods  aban- 
doned them  to  the  insurer,  and  also  abandoned  his  interest  to  the  insurers  on  the 
profits,  it  was  held  tliHt  he  was  entitled  to  recover  against  the  latter  as  for  a  total 
loss,  notuithsianding  a  previous  abandonment  of  the  goods  to  the  insurers  on  the 
cargo,  who  receivi-d  them  after  their  release  by  the  captors,  and  sold  them  to  a  pro6t. 
Mnmford  v.  Hallett,  ibid.  -133.' , 

The  insured  wss  suiiercargo,  :ind  by  contract  was  to  receive  certain  commissions 
out  of  the  return  cargo  ;  on  the  homeward  voyage  the  vessel  was  obliged,  by  stress 
of  weather,  to  put  into  a  port,  where  the  cargo  was  sold  from  necessity, and  a  part  of 
the  proceeds  invested  in  other  articles,  and  brought  home  ;  the  supercargo  here 
eftect'd  a  policy  on  his  profits,  on  the  refusal  of  the  owners  to  pay  him,  abandoned 
to  the  insurers,  and  lirought  his  action  for  a  total  loss,  as  the  return  cargo  did  not 
arrive,  the  insured  lost  his  commissions,  and  was  held  entitled  to  recover  for  a  total 
loss.    The  A'Vzf  York  Ins.  Co.  v.  Robinson,  ibid  615.  \ 

The  cargo  of  a  vessel  was  insured  from  JSTorth  Carolina  to  JVhut  York;  the  vessel 
sailed  the  16ih  Febniary,  1802,  and  was  never  heard  of  afterwards:  an  abandon, 
ment  was  made  on  the  17th  Febniary,  1803,  tQ  the  insurers,  and  proofs  of  the  time 
of  sailing  and  interest  were  exhihited  ;  the  lengtli  of  time  since  the  vessel  was  heard 
of  :iff'orded  presumptive  evidence  of  a  total  loss,  and  no  abandonment  was  necessary. 
Gordon  V.  Boivne,^  Johns.  Rep.  150. 

It  .seems  no  precise  time  is  fixed  on  to  raise  the  presumption  of  a  loss,  but  each 
case  must  depend  on  its  own  circumstances,  ibid. 

Insurance  was  on  a  ship  and  freight,  at  and  from  Amsterdam  to  Philadelplua, 
each  subject  being  separnt.  ly  valued.  On  the  voyage  the  ship  suffered  so  much 
froni  tempestuous  weather  as  obliged  her  to  go  into  an  English  port  to  refit.  Her 
repairs  exceeded  half  her  value.  AV'hileshe  was  in  poiH  refittii.g,  the  assured  offered 
to  abandon  the  ship  and  freight  to  the  underwritf  rs.  The  abandonment  of  the  ship 
■was  accept'  d,  and  a  total  loss  paid  ;  that  of  the  freight  was  refused.  The  ship  pur- 
sued her  voyage,  and  delivered  her  cargo  ia  good  order  at  Philadelphia,  and  the 
freight  named  was  the  same  as  if  the  ship  had  met  with  no  disaster.  It  was 
holilen  thai  the  underwriters  were  still  liable  for  a  total  loss  of  the  freight,  accord- 
ing to  the  valuation  in  the  policy  ;  and   this,  notwithstanding  it  had  been  greatly 


WRITTEN  CONTRACTS.  o«^ 

lor  particular  average  on  this  policy,   payable  in  one  month,*'  Chll.  s.  i. 
and  the  underwriters  afterwards  expressed  doubts  about  the  loss,    .^"'"^"^s  of 

'  '    Assurance. 


overvalued.   Coolidge et  al.  v.  The  Gloucester  Marine  Ins.  Co.  \5J\lass.  liep.  341. 

Where  a  vessel  was  insured  from  JVew  York  to  Havanna,  and  she  set  sail  on  the 
voyage  about  9  o'clock,  A.  M.  of  the  25th  December,  180",  and  just  before  she  got 
under  weigh,  the  pilot  heard  that  anfmdargohad  taken  place,  and  before  she  got  out 
of  port  was  stopped  by  virtue  of  the  Jimerican  einbargo  of  22d  December,  1807  ;  the 
voyage  was  held  to  be  commeBCed  before  the  detention,  and  that  the  insurei*  was 
liable  to  a  total  loss.  Walden  v.  Phcenix,  Ins.  Co-  .'>  .Johns.  Refy.  310.  JH^Bridf 
\.  Marine  Ins.  Co.  ibid.  299.  Ogden  v.  JSf.-'York  Firemen  Ins.  Co.  10  Do.  177 . 
Odlin  V.  Ins.  Co..Penn.  C.  C.  April,  1809,  M.  S.  Rep.  S.  C.  2  HalPs  Laxu  Jour- 
nal, 205. 

The  technical  taiz\  loss,  arising  from  capture,  ceases  with  the  final  decree  of  re- 
stitution, though  the  decree  may  not  have  been  executed  at  the  lime  of  the  ofTer  to 
abandon.     Marshall  \.  The  Del.  Ins.  Co.  4  Crunches  Rep.  202. 

The  loss  of  the  voyage  as  to  the  cargo,  is  not  a  loss  of  the  voyage  as  to  the  ship 
Alexander  v.  Baltimore  Ins.  Co.  ibid.  370. 

Vide  title  abandonment. 

Abandonment. 

To  entitle  the  insured  to  abandon,  there  must  be,  at  some  period  during  her  voy- 
age, a  tot'jl  loss  eiihf  r  real  or  constructive.  Wood  v.  The  Lincoln  £5"  Kennebeck 
Ins.  Co.  6  Mass  Rep.  479. 

And  the  insureil  has  the  right  of  abandoning  so  long  as  the  loss  continues  total 
Dorr  v.  The  JVexv  England  Ins.  Co.  11  Do.  1. 

The  insured  must  give  reasonable  notice  of  his  intention  to  abandon,  otherwise 
he  waives  his  right  so  to  do;  and  where  the  insured  were  informed, on  the  17th  Oc 
tober,  of  the  detention  of  the  vessel,  and  did  not  give  notice  of  the  intention  to  aban 
don  till  the  20th  JVovember  following,  he  was  held  to  have  waived  his  right.  Li 
vermore  v.  JVtrwburyport  Ins.  Co.  I  JWa?s.  Rep.  264.  Smith  et  al.  v.  Same,  4  Do 
668.     Murray  v.  Hatch,  6  Do.  465. 

A  ship  is  insured,  and  is  captured  and  re-captured,  libelled  and  ordered  to  be  re- 
stored, on  payment  of  one-half  the  value  as  salvage,  and  sold  for  want  of  such  sal- 
vage being  paid,  the  master  bi'comes  the  purchaser,  on  his  return  delivers  her  to 
her  former  owners,  after  which  the  insured  offer  to  abandon  (he  proceeds  of  the  sale 
but  not  the  ship,  and  the  underwriters  refuse  to  accept  the  abandonment  as  offered 
it  was  held  the  assured  were  entitled  to  recover  for  a  partial  loss.  Oliver  v.  JVcw- 
bu'-yport,  Ins.  Co.  3  Mass.  Rep.  37. 

Assured  may  abandon  while  the  ship  is  captured,  and  such  abandonment  fixes  the 
right  of  the  assured  to  the  indemnity,  and  the  assurer  to  the  property,  even  though 
»he  be  aftf-rwards  liberated.     Lee  v.  Boardman, ibid.  23^. 

Same  point      Munson  v.  The  JSfew  England  Ins.  Co.  4  Mass.  Rep.  88. 

When  an  abandonment  is  offered  ti>  underwriters  by  the  insured,  it  is  not  neces- 
sary to  produce  evidence  of  thi-  loss  under  oath.  ibid. 

In  Massachusetts,  \t  has  been  questioned,  but  not  decided,  whether  the  obliga- 
tions and  rights  of  the  parties  to  a  policy  of  insurance  be  determined  by  the  actual 
state  oy  the  facts,  or  of  the  intelligence  received  at  the  time  of  the  offer  to  abandon. 
Dorr  v.  jsr.  E.  Mar.  Lis.  Co.  4  Mass.  Rep.  221.     Vide  infra. 

The  assured  knew  of  the  loss  on  the  24th  o\'  February,  and  did  not  offer  toabandon 
till  the  lOlh  of  April  folio-wing  to  the  assurers,  who  lived  in  the  same  pl«ce  ;  tWs 


SbS  .  AssuMPsrr. 

Part  II.     Lord  Kenyon  held  that  it  was  incumbent  on  the  plaintiflf  to  prove 
Sir/,   that  fact. 


was  held  an  unreasonable  time,  and  the  right  to  abandon  was  lost.     Smith  v.  JVeif- 
buryport  Ins.  Co.  ibid.  668. 

To  entitle  the  assured  to  recover  for  a  total  loss,  where  the  property  insured  is 
captured,' »  previous  abandonment  is  necessary;  aliter,  li  the  property  is  burnt, 
siLuk  lit  the  ocean,  &c.     Townsend  v.  Phillips,  2  Root's  Rep.  40i) 

In  JVe7i>  York,  on  a  capture,  restoration,  and  abandonment,  the  fact  of  restoration 
though  unknown  at  the  time  of  abandonment,  takes  away  the  right  to  abandon  and 
claim  for  a  total  loss  ;  and  un<ler  such  circumstances  the  assured  is  entitled  only  to 
recover  according  to  the  final  event.  Church  v.  Bedient,  I  ^V.  York  Cas.  in  Er. 
21.     IMlctt  V.  Peyton,  ibid.  28. 

But  in  subsequent  cases,  it  was  ruled  otherwise,  JUumford  v.  Church,  I  Johns. 
Cas.  147.  Slocum  v.  The  United  Ins.  Co.  ibid  151.  Murray  y.  The  United  Ins . 
Co.  2  Do  263.     Livingston  v,  Hastie,  3  Johns.  Cas.  293. 

Where  the  goods  saved  do  not  amount  to  half  the  value  of  the  goods  insured,  the 
insured  may  abandon.     Gardiner  et  al.  v.  Smith,  1  Johns.  Cas.  141. 

After  an  abandonment,  the  consignee  of  the  goods  insured  becomes  the  agent  of 
the  insurer,  and  his  acts  done  in  good  faiih,  are  at  the  risk  and  for  the  benefit  of  the 
insurer, /6zc/. 

The  insured  are  not  bound  to  abandon  in  case  of  an  accident,  but  may  wait  the 
final  event,  and  recover  accordingly  for  a  partial  or  total  loss,  as  the  case  may  be. 
Earl\.  Shaw,  ibid.  313.  S.  P.  Roget  v.  Thurston,  2  Do.  248.  Steinbach  v. 
The  Columb.  Ins.  Co.  2  Caines'  Rep.  129.  Smith  v.  Steinbach,  2  JV.  York  Cas. 
in  Er.  158. 

■  It  is  sufficient  if  there  be  a  loss  continuing  to  the  time  when  the  abandonment  is 
made.     Early.  Shaw,  I  Johns.  Crts.  313. 

V/here  a  ship  is  abandoned  to  the  insur-r,  who  accepts  it,  and  the  voyage  being 
afterwards  performed,  the  freight  is  earned,  the  insurer  is  entitled  to  the  freight 
earned  subsequent  to  the  abandonment,  pro  rata.  The  United  Im.  Co.  v.  Lenox, 
ibid.  577.     Affirmed  in  Error,  2  Do.  443. 

The  freight  prior  to  the  loss,  goes  to  the  ship  owner,  or  to  his  representative,  the 
insurer  on  freight.  The  Marine  Ins.  Co.  v.  The  U.  States  Ins.  Co.  9  Johns.  Rep. 
186. 

Information  of  a  vessel's  being  captured,  and  also  re-captured  and  carried  into  a 
port  of  the  country  in  the  way  of  her  destination,  to  which  she  is  bound,  takesaway 
the  riiiht  to  abandon.     JMuir  y.  The  United  Ins.  Co.  I  Caines^  Rep.  49. 

Whether  is  newspaper  information  such  on  which  an  abandonment  may  be  made.' 
ibid. 

When  a  vessel  cannot  be  repaired  for  her  value,  she  may  be  abandoned.  Abbott 
V.  Broome,  1  Caines.  Rep.  292. 

If  a  vessel  be  duly  abaniloned  and  refused,  and  after  a  sale  for  the  benefit  of  all 
concerned,  under  an  order  of  the  Court  of  Admiralty,  pronouncing  her  not  worth 
repajriiig,  she  bfi  brought  in  by  the  supercargo,  a  part  owner,  it  is  not  a  waiver  of 
the  abandonment,  though,  on  her  arrival  at  her  home  port,  she  be  sold  at  auction 
for  more  than  she  cost,  and  the  supercargo,  at  the  time  ot  the  action  brought,  have 
the  proceeds  in  his  hands,  ibid. 

If,  after  a  vessel  has  b<*en  abandoned,  she  arrive  in  port,  and  be  there  fitted  out 
by  the  former  owners,  and  sent  on  another  voyage,  it  is  a  waiver  of  the  abandon- 
raent.     Saidler  et  al.  v.  Church,  note,  ibid.  297. 

Receipt  of  freight  earned  by  the  vessel  abandoned,  is  not  a  waiver  of  the  abancTon- 
mentj  if  the  underwriter  did  not  accept  it.    Abbott  v.  Broome,  ibid.  292. 


WRITTEN  CONTRACTS.  oqq 

The  defendant  on  the  general  issue  may  avail  himself  of  any  ch.  ii.  s.  i. 

Policies  of 
~  "  ■  Assurance. 


An  abandonment  may  be  proved  by  parol  evidence.  Peyton  v.  Hallett,  ibid.  3G3. 
In  such  a  case,  it  is  not  necessary  to  give  notice  to  produce  the  letter  of  abandon- 
ment, to  give  in  evidence  the  original,  of  which  it  is  a  copy.  ibid. 

Neither  an  acquittal  nor  a  restitution  prejudice  an  abandonment  once  duly  made. 
Bordcs  V.  Hallett,  ibid.  445.  '*~ 

In  case  of  a  restiliition  of  goods  to  an  owner,  at  a  port  into  which  a  vessel  is  car- 
ried, he  is  not  bound  to  send  them  on  to  their  port  of  destination,  ibid. 

After  an  abandonment  and  paymfentof  a  loss,  a  purchase  of  the  properly  insured 
by  the  agent  of  the  assured,  made  after  condemnation,  is  for  the  benefit  of  the  as- 
surer if  he  elect,  and  the  proceeds  of  the  cargo,  as  well  as  the  property  in  which 
they  are  invested,  become  his  projierty,  for  which  he  may  maintain  trover.  United 
Ins.  Co.  V.  Robinson  2  Cai7ies'  Rep.  230,  Affirmed  in  Error.  1  Johns.  Rep  592. 
If,  after  capture,  the  assured  appoint  an  agent  to  prosecute  his  clnim,  such  agent, 
after  abandonment,  becomes  the  assurer's  agent,  and  a  receipt  by  him  for  the  pro- 
ceeds of  the  property  will  be  deemed  a  re-capture  by  the  assurer,  who  must  look  to 
the  agent  for  the  amount,  and  pay  the  assured  his  full  loss.  JVliller  et  al.  v.  Depey- 
ster  et  al.  2  Caines'  Rep.  301. 
All  bona  fide  acts  by  such  agent  bind  the  assurer,  ibid. 

If  profits  only  be  insured,  an  abandonment  is  necessary  where  there  has  been  no 
insurance  on  the  cargo,  and  only  thai  the  insurer  may  elect  to  pay  his  loss,  or  to 
pay  that  and  the  price  of  the  goods,  at  first  cost  and  charges  :  therefore  if  the  assured 
lie  by,  and  take  his  goods  and  sell  them,  he  cannot  afterwards  call  on  the  assurer  for 
any  loss  on  the  profits.  Tom  v.  Smith,  3  Caines''  Rep.  245. 

Whether  the  above  rule  would  apply  between  different  sets  of  underwriters  on 
cargo  and  profits,  ibid. 

Whether  abandonment  of  a  vessel  insured  has  been  waived,  may  be  a  question  of 
law,  or  a  question  of  law  and  fact,  according  to  circumstances  ;  and  in  the  lalteicase) 
it  is  proper  matter  to  be  submitted  to  a  jury.  Curcier  v.  Philadelphia  Ins.  Co. 
5  Serg.  &  R.  Rep.  113. 

An  insurance  was  efft^cted  on  a  cargo  and  freight  by  an  insurance  company,  and 
by  twenty -three  separate  insurers  on  the  ship.  The  ship  v/as  captured,  and  an 
abandonment  was  made  to  the  several  insurers  on  ship,  cargo,  and  freight  respec- 
tively ;  which  was  accep led,  and  the  sums  insured  paid  for  a  total  loss.  The  ship 
anil  cargo  were  afterwards  liberated,  and  the  ship  proceeded  to  the  port  of  destina- 
tion, and  there  delivered  her  cargo,  which  was  there  sold,  and  the  nett  pfoceeds 
applied  by  the  master,  who  was  joint  consignee  with  merchants  there  to  defray  the 
expense  of  repairs,  and  for  arming  the  sliij).  In  an  action  brought  by  the  insurers 
on  the  cargo  against  one  of  the  insurers  on  (he  sh.p,as  part  owner,  after  the  aban- 
donment for  the  nett  proceeds  of  the  cargo,  so  taken  and  applied  for  the  repairs  of 
the  ship,  it  was  held  that  the  separate  insurers  were  separately  ana^verable,  and  not 
as  joint  parfnei'  with  the  others  for  his  proportion  of  nett  proceeds  of  the  cargo  ap- 
plied to  the  repairs,  but  not  for  the  arming.  The  United  Ins.  Co.  v.  Scott,  1  Johns, 
Rep.  106. 

On  an  insurance  on  a  cargo  at  and  from  J^eiu  York  to  a  port  or  ports  in  Cuba  and 
back,  the  policy  contained  the  usual  clause,  that  the  insurer  was  notito  be  liable  for 
the  consequence  of  illicit  trade  ;  the  vessel  arrived  at  the  destined  port,  but  was  not 
allowed  to  enter;  after  waiting  twenty  davs,  she  sailed  lor  another  port  in  the  island, 
but  was  driven  by  adverse  winds  into  the  Bite  oi  Leogane,  and  for  fear  of  the  brigand 
boats  went  nito  Port  Republican,  where  the  cargo  was  forcibly  taken  by  the  gov- 
ernment there,  and  sold  at  a  ^reat  loss;  the  insured  abandoned  for  a  total  loss,  as- 
signing as  the  cause  the  refusal  of  entry,  and  that  the  voyage  had  been  thereby  dc- 


360  ASSUMPSIT. 

Part  ir,  circumstance  which  makes  the  policy  void,  as  fraud  or  misrepre- 

Policies  of 

Assurance.  


feated  ;  it  was  held  that  the  denial  of  entry  at  Si.  Jago  was  not  a  loss  within  the 
policy  :  as  to  the  effect  "f  a  denial  to  trade,  if  the  voyage  had  ended  there,  dubita- 
tur  ;  the  insured,  in  making  the  abandonment,  must  assign  the  true  cause  ;  if  he  as" 
sign  an  insufiicient  one  he  is  bound  by  it,  and  cannot  avail  himself  of  a  subsequent 
event  without  a  new  abandonment,  and  that  the  assured  was  entitled  to  recover  only 
for  a  partial  loss,  which  was  to  be  estimated  by  deducting  the  nett  proceeds  of  the  sale 
at  Port  Republican,  from  the  prime  cost.  Suydam  et  at.  v.  The  .Marine  Ins.  Co 
ibid.  181.  2  Jofms.  Hep.  138.  Vide  Speyer  v.  Aew  York  Ins.  Co.  3  Johns.  Rep.  88 

A  vessel,  in  attempting  to  get  out  of  the  harbour,  grounded  and  became  leaky  ; 
the  cargo,  consisting  chiefly  of  flour,  being  damaged,  was  unladen,  and  the  shi: 
repaired  in  six  days,  at  the  expense  of  150  dollars;  information  was  given  '. 
the  assurers  on  the  freight  and  cargo,  of  the  accident  the  day  after  it  occurred  - 
and  a  formal  abandotinient  was  made  to  them  in  two  days  thereafter.  Thv 
owners  of  the  cargo  received  it  of  the  owners  of  the  vessel,  and  sold  it  at  auction  a'. 
a  loss  of  twenty-seven  per  cent.  It  was  held  the  assured  had  no  right  to  abandon 
but  ought  to  have  insisted  on  carrying  the  cargo  to  the  place  of  destination,  so  as  t(^ 
entitle  themselves  to  full  freight ;  and  the  assistance  given  by  the  assurers  in  saving; 
the  propel  ty  did  not  amount  to  an  acceptance  of  abandonment.  Griswold  v,  'fh: 
J\''e~M  York  Ins.  Co   1  Johns.  Rep.  205.  S.  C  3  Do.  321. 

When  a  vessel  is  turned  away  from  her  port  of  destination,  which  is  ia  actual 
blockade,  and  she  goes  to  another  port  to  deliver  the  goods,  it  will  be  considered  as 
done  for  the  benefit  of  A\  concerned,  and  will  not  destroy  the  right  of  the  insured  X- 
recover  on  the  abandonment.  Schmidt  v.  The  United  Ins.  Co.  ibid.  249. 

To  justify  an  abandonment  in  the  case  of  stranding,  the  goods  must  be  deteriorated 
to  half  Iheir  value ;  where  it  occurs  at  the  mouth  of  a  river,  so  that  the  insured  might 
by  means  of  lighters,  send  the  goods  to  the  port  of  destination,  she  is  bound  to  do 
so,  and  cannot  sell  them  at  auction,  and  abanflon  for  a  total  loss.  Ludloxo  v.  Colum- 
bian Ins.  Co.  ibid.  335. 

If  certain  articles  be  stated  in  a  policy,  and  a  moiety  of  them  be  lost,  the  assured 
may  abandon  them  as  for  a  total  loss,  though  the  loss  be  not  equal  to  a  raoietyof  the 
whole  cargo.   Vandenheuvel  v.  Tlie  United  Ins.  Co.  ibid.  406. 

After  an  abandonment,  which  is  not  accepted  by  the  insured,  the  insured  remains 
the  quasi  ngent  or  trustee  of  the  insurer,  and  must  do  what  he  thinks  for  the  inter, 
est  ol  the  concerned  ;  and  if  he  act  with  fidelity,  and  sell  the  property  at  auction  in 
the  usual  manner,  without  a  view  to  his  own  benefit,  it  is  no  waiver  of  his  abandon- 
ment, nor  will  it  prejudice  his  right,  ibid,  JI Bride  v.  The  JMarine  Ins.  Co.  G 
Johns.  Rep.  299. 

The  captain  continues  the  agent  of  the  assured  after  capture,  until  the  abandon- 
mentis  made,  and  may,  •as  such,  prejudice  him  by  his  acts.  He  is  the  agent  of  the 
insurer  only  wh'  n  he  acts  for  the  benefit  of  all  concerned.  Doederer  v,  Del.  Ins. 
Co.  C.  C.April,\%07,  M  S.  Rep. 

An  insurance  on  300  barrels  of  flour  was  effected  from  JVew  York  to  London,- 
during  the  voyage  it  became  necessai^ ,  tor  the  preservation  of  the  ship,  to  throw 
OTer  a  part  of  the  cargo,  among  which  were  123  barrels  of  the  flour  insured,  and 
30  barrels  more  were  so  much  damaged  that  it  became  necessary  to  sell  them  at 
J\'orfolk,  where  the  ship  went  from  necessity  ;  the  value  of  the  flour  lost  and  that 
sold,  after  deducting  the  nett  proceeds  of  the  latter,  was  less  thaii  a  moiety  of  the 
prime  cost  of  the  whole  300  barrels  ;  the  insured,  on  hearing  of  the  loss  sustained, 
abandoned  as  for  a  total  loss,  but  ih'  ship  was  afterwards  repaired  and  arrived  at 
^  London,  where  she  delivered  the  residue  of  the  flour  to  the  consignees :  it  was  held 


WRITTEN  CONTRACTS.  gg^ 

sentation,  want  of  interest,  the  ship  not  being  sea-worthy,  devi-  ch.  ll.  s.  i. 

Polici<!s  of 

■ ______—_—————— —^        ■  Asaurance. 

that  there  being  a  loss  of  more  than  a  moiety  of  the  article  specifically  insured,  the  . 

insured  had  a  right  to  abandou  and  recover  for  a  total  loss.     Moses  et  al.  v.  The  Co- 
lumb.  Ins.  Co.  6  Johns.  Rep.  219. 

If  there  be  an  absolute  interdiction  of  conimetce  with  the  pd't  of  destination,  so 
that  the  completion  of  the  voyage  is  impracticable,  or  atiended  with  a  moral  cer- 
tainty of  seizure  or  loss,  or  if  the  port  of  destination  be  in  the  possession  of  an  enemy, 
or  actually  blockaded,  it  seems  the  assured  are  not  bound  to  proceed,  but  may  aban- 
don.  Craig  et  al.  v.  United  his.  Co  ibid.  -226. 

But  the  assured  are  not  entitled  to  abandon  qiiia  timet,  in  cases  where  the  danger 
is  remote  or  contingent,  ibid. 

An  aliandonnient  must  be  made  within  a  reasonable  time,  or  the  insured  cannot 
recover  for  a  total  loss.  Fuller  v.  JW  Cull,  2  Ball  Rep.  219.  1  Feutes'  Rep.  464. 
Bell  V.  Beveiidge,  4  Dull.  Rep.  272.  Camberling  v.  M' Call,  2  DalL.  Rep.  280. 
2  Teates^  Rep.  281.  Ji^' Calmont  v .  Murgatroyd,  S  Yeates''  Rep.  •■Z7 .  Duncan  x. 
Kochf  Wall.  Rep.  39.  Parker  v.  Toiuers,  2  Broivne^s  Rep.  Jip.  88.  Krumbhaar 
T.  Marine  Ins.  Co.  I  Serg.  &  R.  Rep.  281. 

An  abandonment  is  a  yielding,  ceding,  or  giving  up,  by  the  insurer  to  the  insured, 
where  thi  re  has  been  a  great  loss,  and  resorting  to  the  policy  for  an  mdemnily, 
leaving  whatever  remains  for  the  insured.  Fuller  v.  JH'Cail,  2  JOall.  Rep.  219. 

Whether  an  abandonment  be  necessary  where  there  has  been  a  total  loss  of  the 
ship  and  cargo,  ibid. 

If  the  vessel  be  in  the  hands  of  the  captors  a<  the  time  of  abaiidomnent,  sach  aban- 
donment is  good,  though  she  be  afterwards  released,  and  res'ored  before  the  action 
is  coniraeticed.  DiUilli  v.  Gntliff,  4  Dull.  Rep.  446.  Vidt:  intra. 

After  abandonmt  nt,  it  it  turns  out  to  be  legal,  the  insured  is  to  be  considered  as 
agent  for  the  insurei',  so  that  hi-  may  employ  the  ship  to  her  best  advantage.  Cur- 
cier  V'.  The  Philadelphia  Ins.  Co.  5  Serg.  &  R.  Rep  113. 

A  mere  am  st  or  detention  of  a  neutral  vessel  by  a  belligerent  for  the  purpose 
of  legal  adjudication,  will  not  authorise  an  abandonment  Duncan  v,  Koch,  I  PVall, 
Rep.  37. 

The  insured  are  not  bound  to  abandon  till  the  loss  has  actually  happened,  though 
there  is  every  probability,  and  almost  a  certainty  to  his  knowl^'dg^',  that  a  loss  will 
happ^n,  nor  until  he  has  received  c.-rtain  information  of  a  loss.  ibid. 

What  shall  amount  to  inforniation  of  a  loss,  must  depend  on  the  circumstances  of 
the  case.  ibid. 

Is  the  time  within  which  an  abandonment  ought  to  be  made,  a  question  of  law  ? 
ibid. 

The  capture  of  a  neutral  as  a  prize  by  a  belligerent,  is  a  total  luss,  and  entitles  the 
assured  lo  abandon.  Rhinelander  v .  Jns.  Co.  of  Pennsylvania,  \  Hall's  Jima:  Law 
Jonr7i.  I.  4  Crunches  Rep.  29. 

Th«  state  of  the  loss  -.it  the  time  of  the  o_fer  to  abandon,  a>'d   not  the  state  of  the  » 

information  received,  fixes  the  rights  •>f  the  parties,  ibid.    Marshall  \.  Delaware 
Jns   Co.  ibid.  202.  Alexander  v.  Baltimore  Ins.  Co.  ibid.  370. 

The  aisiwed  tiave  a  right  to  abandon  on  capture  ;  and  every  endeavour  to  recover 
ship  and  cargo  pltei  wards  shall  be  intended  for  the  benefit  of  tht  underwriters. 
Campbell  \    H'tiliamson,  2  Bay''s  Rep.  237. 

The  insured  have  a  right  to  abandon  ship  and  cargo  upon  capture,  though  not 
obliged  to  do  so  immediately  aft'-r,  if  there  is  any  probability  of  recovering  tbe  pro- 
peit)  afterwards  :  tlierefore  it  is  not  too  late  for  the  owners  to  make  tii<  ir  el  ciioii 
to  abandon  fi-ally  after  a  decision,  in  a  Court  of  Admiralty,  on  the  subject  of  iirize 
or  no  prize,  Mey  v.  Tnnno  et  al.  ibid.  H)7. 

The  claimants  getting  possession  of  vessel  and  cargo,  on  giving  security  for  the 
3  A 


363  ASSUMPSIT. 

Part.  II.     atioD,  non-performance  of  warranties,  &c.    Proof  of  fraud,  or 

Policies  of 

Asstiiaii.e.     ■——-———— —^—^^—^-^—— —^^^———^— ————— —^-^——^—— — 

„_________  properly,  if  condemned,  on  an  appeal  by  the  captors,  is  not  a  restitution,  nor  con- 
clusive, nor  definitive  on  the  parties,  ibid. 

The  delay  and  uncertainty  of  decisions,  are  risks  within  the  policy,  ibid. 

Sea-wortldness . 

In  every  insurance  on  a  ship  or  goods,  there  is  an  implied  warranty,  that  the  ship 
is  seaworthy.  Porter  v.  Bussey,  1  Jliass.  Rep  436. 

If  th<-  ship  be  not  seaworthy,  the  policy  will  be  void,  though  the  insured  were  ig' 
norant  of  the  fact   ibid. 

A  vessel  must  not  only  be  seaworthy  at  the  time  of  her  sailing,  but  must  be  also 
duly  cquippefl  iind  manned  with  a  competent  en  w  for  the  voyage  insured.  SUva  v. 
Lo1V,^  Johns.  Cas,  184  Barnwully.  Church,  ^  CainfS^  Sep.  217.  Talcot  \ .  JMw 
inne  Ins.  Co.  2  Johns.  Rep.  I.'50.  Xante  \.  Commercial  Ins.  Co.  ibid  124. 

It  is  an  implied  warranty  in  every  policy,  on  the  vessel  or  goods,  that  the  vessel  is 
seaworthy,  and  competent  to  perform  the  voyage  ;  and  it  makes  no  difference  though 
the  vessel  were  surveyed  before  she  sailed,  and  pronounced  by  carpenters  to  be 
competent,  if  she  prove  on  the  voyage  not  to  have  been  seaworthy.  Warren  v.  The 
United  Ins.  Co.  2  Johns.  Cas.  231. 

Admiralty  sui-veys  of  seaworthiness,  are  ex  parte  evidence,  and  inadmissible. 
..Abbott  V.  Sebor,  3  Johns.  Cas.  39.  S.  P.  Saltus  et  al.  v.  Commercial  Ins.  Co.  10 
Johns.  Rep.  487. 

A  crew  of  two  persons,  including  the  master,  is  not  sufficient  for  a  vessel  of  thirty- 
five  tons  from  J\'e~a)  York  to  Edenton,  JV.  C.  and  of  this,  if  it  appear  in  evidence  on 
the  case  made,  the  Court  will  judge.  Doiv  v.  Smith,  1  Caines'  Rep.  32. 

Seaworthiness  is  always  implied,  and  never  at  the  risk  of  the  underwriter.  Barn- 
■wallv.  Church,  ibid.  217.  Abbott  v.  Broome,  ibid.  292. 

If  the  defects  in  a  vessel,  existing  previous  to  effecting  the  policy,  be  not  such  as 
to  render  the  vessel  unseaworlhy,  they  are  not  to  be  taken  into  consideration,  in  de- 
termining whether  the  repaiis  put  on  her,  exceed  half  her  value.  Depeyster  v.  Co- 
lumbiu7i  Ins.  Co.  2  Caines^  Rep.  85. 

If  a  vessel  be  seaworthy  at  the  time  of  her  sailing,  and  suddenly  afterwards  spring 
a  leak,  and  founder,  without  any  stress  of  wt- alher  or  apparent  cause,  it  is  a  loss  by 
the  perils  of  the  sea,  and  the  insurer  will  be  liable,  and  whether  she  be  seaworthy 
or  not,  the  jury  will  determine  as  a  matter  of  fact.  Patrick  v.  Hallett,  et  al.  1 
Johns.  Rep.  241. 

Where  a  vessel  sailed  with  a  fair  wind  and  moderate  weather,  and  in  the  evening 
of  the  same  day  sprang  a  leak  and  foundered,  without  any  apparent  cause  or  extra- 
ordinary accidtnt,  it  was  held  her  loss  must  be  presumed  to  h^ve  arisen  from  lier 
not  being  seaworthy  at  the  time  of  sailing.  Talcot  v.  The  Commercial  Ins.  Co. 
2  Johns.  Rep  124. 

It  would  appear,  that  the  implied  warranty  of  seaworthiness,  does  not  extend  so 
far  as  to  warrant,  that  the  vessel  shall  have  all  proper  documents  or  papers  on  board. 
Elting  et  al.  v.  Scott  et  al.  ibid.  157. 

On  an  insurance  "  at  and  from,''''  the  warranty  of  seaworthiness  must  be  referred 
to  the  commencement  of  the  risk,  and  if  between  that  time  and  the  sailing  of  the 
vessel,  she  becomes  unfit  for  sea,  v.ithout  the  fault  of  the  assured,  and  is  afterwards 
lost,  the  assured  may  recover    Garrigues  v.  Coxe,  1  Binn.  Rep.  592. 

To  determine  the  cjuestion  of  seaworthiness,  the  nature  of  the  voyage  is  to  be  con- 
sidered. Bell  v.  Reeil  et  nl.  4  Binn.  Rep.  127. 

When  a  vessel  is  staunch,  and  properly  fitted  for  sea,  before  she  sails  out  of  port, 
the  springing  aleak,  or  other  accident  at  sea  afterwards,  will  not  vitiate  the  policy. 
Miller  et  al.  v.  Russell  et  al.  1  Bay's  Rep.  309. 


WRITTEN  CONTRACTS.  ggg 

want  of  sea-worthiness,  lies  upon  the  defendant;  but  in  cases  Ch. ii.  s.  i. 

Policies  of 


Assurance. 


Where  a  vessel  proves  leaky  arid  unfit  tor  st-a,  tin-  dwy  after  she  sails,  without  any 
violent  gale  of  wind,  to  make  her  so,  it  is  sirrmgly  prcsumptivr  sh(  was  not  seawor- 
thy when  she  saih  il.  IVallace  v.  Defiau  et  al.  2  liay''s  Rep.  503.  Coitet  al.  v.  Del. 
Ins.  Co.  C.  C.  Oct.  1809,  M.  S.  Hep. 

Voyages  illegal  by  want  of  neutrality,  &c. 

A  passport  granted  by  any  particular  government,  to  protect  against  its  own 
cruisers,  is  not  such  a  sailing  under  the  11. ig  of  that  government,  as  to  stamp  a  na- 
tional character,  and  be  a  violation  of  neutrality.  HaUett  et  al.  v.  Jenks  et  al.  1  A\ 
York  Cas.  in  Er.  43.  I  Caiiies'  Rep.  60. 

A  vessel  driven  by  distn  ss,  into  a  French  port,  wher-e  a  part  of  the  cargo  is  taken 
by  the  officers  of  the  government,  and  she  prevented  from  taking  uway  her  oi  iginal 
lading,  may,  (without  incurring  the  penalties  of  the  Act  forbidding  all  intercourse 
with  the  dependencies  of  i^ra/ice,)  purchase  and  load  with  the  produce  of  the  coun- 
try, ibid. 

A  mere  sailing  for  a  port,  understood  to  be  blockaded,  is  not  such  a  breach  of 
neutrality,  as  to  destroy  the  policy  of  insurance.  Vos  v.  The  United  Lis.  Co.  I  JV. 
York  Cos-  in  Er.  vii.  2  Johns.  Cas  469.  Contra  in  Supreme  Court,  2  Do  180. 
Et  vi<le  Liotard  et  al.  v.  Graves,  3  Caines'  Rep.  2'26. 

The  trade  of  a  domiciled  alien,  carried  on  from  the  Utiited  States,  with  the  ene- 
raies  of  his  mother  country,  is  protected  undera  warranty  against  illicit  trade.  John- 
ston  et  al.  v.  Ludlow,  1  JV.  Tork  Cas.  in  Er.  xxix.     2  Johns.  Cas.  481. 

To  constitute  a  breach  of  that  warranty,  the  seizure  must  be  for  an  actual  illicit, 
prohibited  or  contraband  trade  ;  and  a  seizure  undtr  pretext  "f  such  a  trade,  is  not 
sufficient,  if  the  trade  be  not  in  fact  one  or  the  other,  ibid.  1  JW  York  Cas.  in  Er, 
xxix. 

Where  an  insurance  is  made  on  part  of  a  cargo,  warranted  free  from  contraband, 
and  part  of  the  cargo  uninsured,  was  contraband  to  the  knowledge  of  the  insurer, 
and  the  vessel  being  condemned  on  account  of  the  contraband  goods,  ihe  plaintiff 
shall  recover  for  a  total  loss.  Boivne  v.  Shaw,  Coleman  &  Caines'  Cas.  in  Prac. 
304.     I  Caines'  Rep.  489. 

In  an  action  on  a  policy  of  insurance  from  jYeiv  York  to  the  Havamia,  o.iall^ato- 
/mZ  goods,  it  was  held,  that  articles  contraband  of  war,  were  lawful  goods  within 
the  meaning  of  the  policy ;  that  goods  not  pr  hiiiited  by  the  positive  law  of  the  coun- 
try, to  which  the  vessel  belongs  are  lawful ;  and  that  the  insured  are  not  bound  to 
disclose  to  the  insurer,  that  the  goo<ls  insured  are  contraband  of  war.  Seton  et  al.  v. 
Zew,  1  Johns.  Cas.  1.  S.  P.  Skidmore  v.  Desduity,  2  Johns.  Cas.  77.  Jutiel  v. 
Rhinelaiider ,  ibid.  120.    S.  C.  affirmed  in  error,  ibid.  487. 

A  policy  of  insurance  against  the  risk  from  an  illicit  trade,  is  valid,  though  it 
would  be  void,  if  intended  to  piotect  a  trade  prohibited  by  our  laws.  GarcUner  et  al, 
V.  Smith,  1  Johns.  Cas.  141. 

A  neutral,  residing  as  the  consul  ot  a  neutral  state  in  a  belligerent  country,  and 
carrying  on  trade  there  as  a  merchant,  is  to  be  considered  as  domiciled  in  that  coun- 
try, and  if  he  be  connected  with  neutral  partners  in  trade,  his  property  will  be  sub- 
ject to  capture  and  condemnation  by  a  belligerent,  as  enemy's  property.  Amold\. 
The  United  Ins  Co.  ibid.  363. 

A  warranty  of  being  the  property  of  an  .American  citizen,  is  proved  by  reputation, 
employ  and  domicil.     Peyton  v.  Hallett,  1  Caines'  Rep.  363. 

Property  warranted  to  be  n-^utral,  must  not  only  have  every  document  necessary 
to  prove  its  neutrality,  according  to  treaties,  and  the  laws  of  nations;  but  it  must  not 
be  accompanied  with  sny  papers  to  comprorait  its  neutral  character.  Blagge  v. 
The  United  Ins.  Co.  ibid.  549, 


3g^  ASSUMPSIT. 

Part  II.  where  such  a  defence  is  expected,  it  will,  of  course,  be  proper 

Policies  of 

Assur>ince. 


If,  under  such  a  warranty  on  goods,  the  outward  cargo  appear  to  have  produced 
less  th^n  the  honit-ward  one  cust,  ihf  assured  in  a  voyage  fron;  a  belligerent  coun- 
try, niust  shi  w  that  the  excess  is  derivi-d  from  neutral  tunds.  ?6if/. 

To  coii'riiiute  a  blockade,  so  as  to  aff'ct  a  policy  of  insurance  by  a  violation  of  it, 
the'e  niust  be  an  actual  t-xisting  forct:.,  before  the  port,  at  the  time  it  is  entered  ;  the 
a?iimus  rererte/ir/j  of  a  blockading  fleet,  does  not  continue  the  blockade,  nor  is  the 
entry  of  a  neutral,  after  being  warned,  a  bi-each  of  his  uestralit)  ,  if  the  blockading 
force  be  not  before  the  port.      fVilliams  v.  Smith,  2  Caines'  Rep.  1. 

But  an  actual  removal  of  a  block;<ding  fl'-et,  by  winds  or  storais,  does  not  sus- 
pend the  blockade,  and  if  the  neutral  with  notice  of  the  cause  of  its  absence,  attempt 
to  enter,  it  is  a  breach  of  the  blockade.  Radcliff  v.  The  United  Ins.  Co.  7  Johns, 
Rep.  38. 

An  assignment  of  part  of  the  subject  insured  to  a  belligerent,  though  after  cap- 
ture, is  a  b.tach  of  a  warranty  of  neutral  properly.  Goold  v.  United  Jns.  Co. 
2  Caines''  Rep.  73. 

A  po.ic\  On  goods,  from  JVI'w  York  to  France,  was  effected  warranted  »4/nm can 
prop'  iH  ;  the  goods  were  purchased  in  JVezu  Fork,  by  American  merclianis,  and 
shippeil  O'l  board  of  an  American  vessel,  consigned  to  merchants  in  France,  under 
an  agreement  for  that  piiri>ose,  by  which  tht  former  were  to  deliver  the  goods  at  St. 
Vulery,  an'l  Ne  wllowed  8  per  cent  com  missions,  taking  upon  themselves  ali  risks, 
expressly  iiicluitini^  a  |)remium  for  insurance  against  all  risks  ;  the  consignees  were 
to  pay  the  Ireight  on  delivtiy,  and  »lso  for  the  goods  in  bills  on  London,  ;;uaranteed 
by  a  commercial  hous'-  in  London;  the  goods  were  captured  by  the  Rritish,  and 
condemned  as  French  property.  In  an  action  on  the  policy,  it  was  held,  the  goods 
remained  th-  prop-ity  of  the  consignees,  un'.il  their  delivery  in  France,  and  that 
the  warrai'ty  in  tlie  policy  was  complieil  with;  that  such  a  contract  was  legal  and 
valid,  and  did  nut  change  the  properly,  so  as  to  destroy  its  iieulral  character,  orvio- 
late  the  contract  of  insurance.     Ludlorj  v.  Bo-cone  et  al.    1  Johns.  Rep.  1. 

A  vague  rumour  or  knowlei>ge  of  an  embargo,  received  from  a  pilot,  before  ves- 
sel sailed,  is  nO'  suffiiru  nl  to  chaige  the  assured  with  knowing  the  Act  laying  the 
American  embargo  of  the  2'2d  Dec.  1807,  so  as  to  render  the  voyage  illegal  in  its 
coraiueiceinen  .     fValdea  et  al.  ».  Pkoemx  Ins.  Co.  5  Johns.  R'ip.  310. 

Actual  or  constructive  notice  of  the  existence  of  a  blockade,  is  requisite,  before  a 
neutral  can  be  deemed  hi  delicto,  or  to  have  violated  his  neutral  duty,  by  attempt- 
ing to  enter  the  poit.     Radcliff  et  al.  v.  The  United  Ins.  Co.  7  Johns.  Rep.  38. 

A  purchase  of  a  vessel  by  an  alien,  to  be  paid  for  at  all  events,  but  to  be  transr 
ferreil  at  a  future  day  ;  the  proiierty  remains  in  the  seller,  an  American  citizt  n,  and 
is  a  compliance  with  a  warranty  of  .-J/nerVca?! property,  jyiurgatroyd v .  Cra-wford, 
3  Ball.  Rep.  491. 

If  the  gi  neral  agent  of  the  assured,  where  the  property  insured  is  warranted 
neutral,  deceive  one  of  the  belliger.nts,  by  covering  the  property  of  his  enemy,  the 
assurer  is  discharged.  Pratt  v.  The  Phanix  Ins.  Co.  1  Rrowne's  Rep.  152.  S.  C. 
2  Binn.  Rep.  308. 

Persisting  in  an  intention  to  enter  a  blockaded  port  after  warning,  is  not  attempt- 
ing to  enter  Fitzsimmons  v.  J\'exuport  Ins.  Co.  1  Hall's  American  Laiu  Journal, 
139.     4  Cranch's  Rep   185. 

A  breach  of  a  blockade,  under  the  treaty  with  Great  Britain,  mast  consist  of  a 
second  attempt  to  enter  a  blockaded  port,  alter  being  warned  off  by  the  blockading 
squadron  ;  loose  declarations  of  a  master,  when  not  in  the  possession  of  his  ship,  that 
if  released,  he  intended  to  enter  the  bluckaded  port,  do  not  amount  to  such  an  at- 
tempt.    Williamson  et  al.  v.  Tunno  et  al.  2  Bay's  Rep.  338. 


WRITTEN  CONTRACTS.  335 


for  the  plaintiff  to  be  prepared  with  evidence  to  support  that  part  ch.  ir.  s.  i. 

of  his  case.  Policies  of 

Assurance. 


Wager  policies,  &c. 

In  JVTassachvsetts,  a  wager  policy  was  held  not  to  be  a  valid  contract.  Jlmory  v. 
GilmaJi,  2  J[Iass.  Rep.  1 .     Dmnas  v.  Jones,  4  Do.  647. 

A  wager  policy  is  valid  at  common  law.  Jiihel  v.  Church,  2  Johns.  Cas.  333. 
Abbott  V.  Sebor,  3  Do.  39.    Clendennirig  v.  Church,  3  Caines^  Rep.  141 . 

The  main  priiiciphs  of  the  British  Statute  19  Geo.  2,  c.  37,  have  been  adopted 
in  Pennsylvania,  both  by  the  Courts  of  Justice,  and  commercial  usage.  Pritcket  v. 
Ins. Co.  JVorth  America,  3  Veates'  Rep.  458.  Crais  ei  al.  v.  JMurgatroyd,  4  7>o.l68. 

A  part  owner  of  a  vessel,  who  has  chartered  the  rest,  with  a  covenant  to  pay  the 
value,  in  case  of  a  loss,  may  insure  the  whole  vessel  as  his  property,  Oliver  v. 
Greene,  3  jyiass   Rep  133.     Vide  Dumas  \.  J6?ies,  i  Do.  CA7. 

Where  the  ii^surer  of  a  bouse,  after  he  has  effected  an  insurance,  sells  the  same, 
still  reserving  a  certain  interest,  he  will  be  able  to  recovei-  on  the  policy  in  case 
of  a  loss.     Stetson  v.  Mass.  Mntnal  Fire  Ins.  Co.  iMass.  Rep.  330. 

An  owner  of  a  ship  bottomed  for  more  than  her  value,  has  not  an  insurable  inte 
rest  in  her.     Smith  v.  Williams,  2  JV.  York  Cas.  in  Er.  110.     2  Caities'  Rep    I. 

Neiihfr  a  want  of  averring  interest,  nor  the  words  of  the  policv  being-  "  p  iley  to 
be  proof  of  interest,"  are  of  themselves  evidence  of  a  wagrr  policy.  Clendenning 
V.  Church,  3  Cuines''  Rep.  141. 

On  a  wager  policy,  to  entitle  the  assured  to  recover,  the  loss  must  be  absolutely 
total,  a  technical  total  loss,  gives  no  right,  ibid. 

Profits  are  insurable  eo  nomine.  Tom  v.  Smith,  ibid.  245.  Mbott  v.  Sebor,  3  Johns 
Cas.  39. 

The  insured  purchased  a  British  ship  of  merchants  in  Jamaica,  but  not  being 
able  to  pay  the  whole  purchase  inon^y,  it  wms  agreed.,  that  the  ship  slionlil  continue 
in  the  nanies  of  the  original  owners,  until  the  balance  was  paiti ;  the  insured  took 
possession,  and  acted  as  owner  of  the  vessel;  in  an  action  on  a  policy  of  nsur^nce  on 
the  vessel,  effected  in  the  name  of  the  insured,  it  was  held  he  had  an  insurable  in- 
terest. Kenny  v.  Clarkson,  1  Johns.  Rep.  385. 

The  owner  of  a  vessel,  noiwiibstanding  there  maybe  a  bottomry  bond  on  the 
vessel,  may  insure  his  interest  in  her.  ibid. 

A  lien  or  contingent  interest  in  a  cai'go,  is  a  subject  matter  of  insurance,  and  on 
abandonment,  the  assurer  acquires  all  the  rights  and  privileges  of  the  assured.  Riis- 
selv.  The  Union  Ins.  Co.*  Dull.  Rep.  421. 

What  11.  n  oil  goods  is  an  insurable  interest?  Donath  v.  The  Ins.  Co.  of  JVorth 
America,  ibid.  463. 

If  such  goods  themselves  be  insured  b)'  the  person  claiming  the  lien  as  agent  for 
the  owner  of  the  goods,  hi  cannot  recover  on  a  capture  and  restitution  of  goods  to 
the  owner,  who  does  not  satisfy  the  lien.  ibid. 

Re-assuraiice  and  double  assurance. 

In  Massachusetts,  a  policy  of  re-assurance  is  a  valid  contract.  Merry  v.  Prince, 
2  Muss   Rep.  176. 

()i«  a  re-assiir!ince  no  abandonment  is  necessary,  though  the  primitive  insurer  has 
abandoned  10  Ins  insurer.  Iliistie  v.  DepeyHer,  3  Cainrs''  Rep    190. 

The  re-aspurer  is  liable  to  the  assurer,  lor  all  costs,  &c  io/ia/ff/e incurred  in  de- 
fending the  suit  of  the  original  insurers,  espi  cially  when  he  is  present,  and  does  not 
offer  to  settle    ibid. 

It  is  necessary  for  the  original  underwriter,  to  shew  he  has  been  obliged  to 


366  ASSUMPSIT. 

Partli.         This  is  the  evidence  ordinarily  required  to  support  an  action 

Policies  of 

Assurance.  ~~'  '    ~ 

________  pay  a  just  claim  againsi  him,  and  he  will  be  entitled  to  interest  on  all  he  has  paid. 

ibid. 

In  the  casi-  of  a  double  assurance,  the  insurers  shall  contribute  rateably,  to  satisfy 
a  loss.   Thvrston  v.  Koch,  4  Dall  Rep.  348.  .appendix  XXXII. 

To  constitute  a  lionble  insuranci*,  it  s-ems  that  the  two  insurances  must  not  only 
be  for  the  bcnefil  of  th-  same  person,  and  on  the  same  subject,  but  for  the  same  risk. 
Col.  I)is.  Co.  V.  Lynch,  11  Johns.  Rep  233.  Et  vide  Thurston  v.  Jioch,  4  Bull. 
Jiip.  350.  Warder  \.  Ihrton  et  al.  4  Binn.  Rep.  5'29.  Et  vide  Peters  v.  Delaivare 
Lis.  Co.  5  Ser^.  &  R.  Rep.  473. 

Deviation. 

Nothing  will  justify  a  deviation  from  the  voyage  described  in  the  policy,  but  a  real 
antl  imptrious  necessity.  Stacker  et  al.  v.  Harris,  3  Mass  Rep.  409. 

A  ship,  cago,  and  freight  are  iiisur^-d,  from  Boston  to  the  Canaries,  at  and  from 
thence  to  any  port  or  ports  in  Spunish  America  ;  at  and  from  thence  to  her  port  of 
discharge  in  the  United  States,  under  whatever  papers  she  may  sail.  She  arrives 
with  Spanish  colours  and  papers,  in  due  course  at  Vera  Cruz,  where  sh-  lanfis  her 
cargo,  which  is  seized  by  the  government  as  an  illegal  importation.  The  master 
remains  five  months  with  the  ship,  prosecuting  the  recovery  of  the  cargo.  Fniling 
in  this,  he  takes  a  cargo  on  freight  to  the  Ha^.anna,  and  on  his  voyage  was  captured, 
and  aftei  wards  comlemnetl.  The  stay  at  Verg.  Cruz  was  not,  and  the  voyage  to  the 
Savanna  was  held  to  be,  a  deviation,  ibid. 

Where  a  captain  acts  from  the  best  of  his  judgment  for  the  benefit  of  all  concern- 
ed, and  displays  ordinary  skill  and  judgment,  the  contract  of  insurance  remains 
unimpaired  by  a  deviation  under  such  circumstances.  Brazier  et  al.  v.  Cl.ap,  5 
J\luss.  Rep.  1. 

A  mere  intention  to  deviate,  without  an  actual  deviation,  will  not  release  the  un- 
derwriters. I^eet  al.  v.  Gray,  7  Jfass.  Rep.  349.  Snotuden  et  al.  v.  Phmnix  Ins. 
Co.  3  Binn.  Rep.  467. 

Where  a  vessel  staid  in  port  six  months  after  the  date  of  the  policy,  it  was  held 
not  to  be  a  deviation,  the  delay  not  being  fraudulent  or  varying  the  risk.  Earl  v. 
Shaiv,  1  Johns.  Cas.  313. 

Whether  the  negligence  of  the  assured  in  not  having  proper  documents  on  board, 
or  having  contradictory  papers,  in  consequence  of  which  the  ship  is  taken  out  of  her 
course,  amount  to  a  deviation .'     Goix  v.  Lov),  ibid.  341. 

AVhere  (lie  terntini  oi  \.\m:  voyage  insured  are  preserved,  it  is  only  a  deviation  to 
touch  at  any  intermediate  port ;  and  though  it  be  resolved  on  before  the  voyage  com- 
menced, yet  it  is  not  a  different  voyage  from  that  described  in  the  policy,  and  the 
insurer  will  be  liable  for  any  loss  bel'oi'e  arriving  at  the  dividing  point.  Henshaiu  v. 
Mar.  Ins.  Co.  2  Cables'"  Rep.  274.     Silva  v.  Low,  1  Johns.  Cas.  184. 

If  the  assured  be  apprised  by  his  master  of  his  pursuing  another  voyage  than  that 
insured,  on  which  he  has  been  sent,  and  do  not  dis-approve  of  it,  it  is  only  a  devia- 
tion and  not  barratry,  though  the  master  ultimatfly  run  away  with  the  ship,  sell 
her,  and  embezzle  the  proceeds.   Thurston  v.  The  Col  Ins.  Co.  3  Caines*  Rep.  89. 

An  insurance  on  a  cargo  of  corn  aud  flour  from  J^fexti  York  to  Madeira,  with  the 
usual  memorandum  in  the  policy.  In  her  passage  the  vessel  met  with  bad  wea- 
ther, and  arriving  in  sight  of  Madeira,  she  was  prevented  by  adverse  winds  from 
entering  the  port,  and  suspecting  a  ship  in  sight  to  be  a  privateer,  the  master  bore 
away  and  went  to  the  Cape  de  Verd  Islands,  where  the  cargo,  being  much  damaged, 
■was  ordered  by  the  government  to  be  sold  there,  not  being  able  to  repair  the  vessel, 
the  insured  broke  up  the  voyage,  and  abandoned  for  a  total  loss  ;  but  the  vessel  got 
some  repairs  and  went  to  Lisbon.    The  going  to  the  Cape  de  Verd  Islands  was  held 


WRITTEN  CONTRACTS.  ggy 

on  this  instrument.    The  profession  being  already  in  possession  Ch.  n.  s.  i. 

Policies  of 

~—^—— ■""  ~~         '    '  Assurance. 

not  to  be  warranted  by  necessity,  anil  tlieretore  a  deviation.    JVelson  v.  Columbian         ..  . 
Insur.  Co.  1  Johns.  Rep.  301. 

An  alteration  of  the  voynge,  after  the  risk  h;is  commenced,  is  only  a  deviation. 
Lawrence  v.  Ocean  Ins.  Co.  11  Johns  liep.  '241. 

A  clearance  to  a  port  <liftVr>'nt  from  the  one  insured,  with  a  view  to  avoid  deten- 
tion by  cruisers,  does  not  niake  a  different  voyage,  and  (hough  the  master  state  in 
his  protest  that  he  sailed  fora  different  port,  yet  if  he  explain  his  reason  for  so  doing 
it  vvill  not  vary  the  case.     Talcot  v.  The  Mar.  his.  Co.  2  Johns.  Rip.  130. 

A  vessel  and  her  cargo  were  insured  "  from  JVetu  York  \.o  Antigua,  ^\\A  "at  and 
from  Antigua  to  Curracoa."  The  vessel,  after  her  departure  from  JVexv  York, 
was  forced  by  necessity  into  St.  Croix,  where  part  of  the  cargo,  being  perishable 
and  damaged,  was  sold  before  the  necessary  repairs  were  completed  ;  and  the  mas- 
ter deeming  it  impracticable  to  bear  up  to  Antigua.,  sailed  direct  from  St.  Croix  to 
Curracoa,  and  while  proceeding  thithei',  he  was  captured  by  a  British  cruiser,  sent 
to  Jarnaicu,  and  condemned  for  attempting  to  enter  a  blockaded  port.  In  an  action 
on  the  policy,  it  was  held  that  going  direct  from  St.  Croix  to  Ctirracoa,  without 
proceeding  first  to  Antigua,  was  no  deviation,  and  that  a  sx'e  of  a  part  of  the  cargo 
at  i^^.  Croix,  did  not  avoid  the  policy.     Kane  v.  The  Col.  Ins.  Co  ibtd.  264. 

Where  a  vessel,  insured  ;from  JVew  York  to  Bordeaux,  had  Frencli  passengers 
on  board,  and  the  owners  instructed  the  master  to  go  to  sea  through  the  Sound  to 
avoid  detention  by  ^/vrtsA  cruisers  then  off  the  Hook,  and  the  master  did  so  instead 
of  the  JVarroTvs,  which  is  the  most  usual  and  least  dangerous  route  to  the  sea,  it 
was  held  not  to  be  a  deviation.  Reade  v.  The  Commercial  Ins.  Co.  3  Johns.  Rep. 
352. 

Where  the  master  altered  the  course  of  the  voyage  with  the  intention  to  benefit 
as  well  his  owners  as  himself,  it  is  only  a  deviation,  and  the  insurers  are  discharged. 
HoocTsexrs  v.  J\'esbit  et  al  2  Dall.  Rep.  137.     .S'.  C.  1  Yeates'  Rep.  114. 

If  a  vessel  stay  at  a  port  after  her  liberation  longer  than  is  necessary  to  prepare 
for  the  voyage  and  the  purpose  of  trading,  it  is  a  deviation.  Kingston  v.  Girard,i 
Dall.  Rep:  17 i. 

It  is  no  deviation  to  touch  and  stay  at  a  port  out  of  the  direct  course  cf  the  voyage, 
if  such  departure  be  within  the  usage  of  the  trade,  and  whether  the  deviation  in  point 
oitime  or  objeet  of  cause  be  within  the  established  usage  is  a  matter  of  fact.  Ben- 
taloe  V.  Pratt,  I  Wall.  Rep  61. 

A  detention  at  sea  to  save  a  vessel  in  distress  is  such  a  deviation  as  discharges  the 
underwriters.     Mason  v.  The  Blareuu,  2  Cra/ich's  Rep.  268. 

If  a  vessel  be  insured  at  and  from  K.  to  A.  and  take  a  cargo  for  B.  and  A.  and  sails 
with  intent  to  go  first  to  B.  and  then  to  A.  and  is  captured  before  she  arrives  at  the 
dividing  jsoint  between  A.  and  B.  it  is  only  a  case  of  an  intended  deviation  and  not 
oinon  inception  of  the  voyage.    Mar.  Ins.  Co.  v.  Tucker,  3  Crunches  Rep.  357. 

A  policy  will  not  be  vacated  by  a  deviation  on  a  voyage  occasioned  by  stress  of 
weather,  unavoidable  accident,  to  avoid  an  enemy  or  the  like.  Miller  etal.  v.  Rus- 
sell et  al.  I  Bay's  Rep.  309. 

Where  a  vessel  has  the  privilege  of  stopping  at  &  port  and  does  not,  it  is  no  devi- 
ation.    Cross  V.  Shutliffe,  2  Bay's  Rep.  220. 

A  ship  parted  from  her  convoy  by  stress  of  weather,  compelled  to  bear  away  for 
another  port,  and  taken  while  out  of  her  course  to  the  destined  port,  and  condemned, 
will  not  exonerate  the  insurer.     Campbell  v.  fVilliamson,  ibid.  237. 

Representations. 

Where  a  house  insured  is  represented  at  the  time  of  .-ff.-cting  the  insurance  to  be 
connected  with  another  building  on  one  side  only,  and  betbre  the  loss  happened  it 


368  ASSUMPSIT. 

Part.  IT.     of  full  instructions  on  this  subject,  in  the  books  of  Mr.  Justice 

Policies  of 

Assurance.  ~ — ' 

____•_  bt-canie  coniiectt-d  on  {wo  sides,  the  policy  is  noi  avoided,  unless  the  risk  beeame 
greater.     StetK07i  v.  1  he  Mass.  JMutuul  Fire  Ins.  Co.  4  J\Iass.  Rep.  .330. 

If  a  belligerent  emigrate  to  a  neutral  f^nunU).  Jlag^rante  bello,  and  be  there  natu- 
ralised, a  warranty  ot  neutrality  is  thereby  supported  ;  nor  need  the  a^sur  -d  disclose 
the  period  of  his  naturalisation.     Diigiiet  v.  Rhinelancler    1  JV.    York  Cas  in  Er. 
^      XXV      I  Johns.  Cus.  360.     2  Johns.  Cas.  476.     Sed  vide  Jackson  v.  T/ie  JV.  York 
l7is.  Co.  ibid  19!. 

If  a  v^ssel  be  stated  as  out  about  nine  -weeks,  when  in  fact  she  had  been  out  ten. 
■weeks  and  fonr  days,  it  is  not  a  material  misrf-presentation  if  that  period  be  within 
the  usual  time  of  the  voyage,  and  whether  it  be  so  or  not,  the  jury  shall  determine. 
Jllackai/  V.  Rhinelander  et  al.  1  Johns.  Cas.  408.  Et  vide  Williams  v.  Delujield, 
2  Cuiiies'  Rep.  329. 

A  transfer  of  a  neutral  vessel  to  a  subject  of  the  belligerent,  to  secure  a  debt,  de- 
stroys her  neutrality  ;  and  not  being  conimunicatt-d  to  the  insurer  destroys  the  po- 
licy.    JWwTayv.  The  United  Ins.  Co.2  Joh?is.  Cas.  168. 

It  is  not  necessary  to  disclosf  how  long  a  vessel  has  lain  in  a  port  antecedent  to  a 
policy  being  entered  into.     Kemble  v.  Boivne,  1  Caines'  Rep  75. 

If  the  assured  have  information  of  a  violent  storm,  the  day  after  his  vessel  has 
sailed,  and  he  state  only  that  there  has  been  blowing  weather  on  the  coast,  it  is  a 
misrepresentation  which  will  avoid  the  policy.     Ely  v.  Hallett,  2  Caines"  Rep.  57. 

A  TL-presentation  in  time  of  peace,  that  a  vessel  shall  sail  in  ballast,  is  substan- 
tially complied  with,  though  she  sail  with  a  trunk  of  merchandise,  and  ten  barrels 
of  gunpowder,  laden  on  board  without  the  knowledge  of  the  owner.  Siickleyy.  De- 
lajeld,  ibid.  222. 

It  an  assured,  having  written  several  letters  ordering  insurance,  and  sent  them  bj 
diffi-rent  conveyances,  arrive,  after  a  knowledge  of  a  loss,  with  one  of  the  letters,  at 
a  port  from  whenci-  it  is  forwarded  b\  the  post,  he  is  bound  to  countei  mand  the  or- 
der by  the  same  mail  Wutsoji  v.  DeLtJield,  ibid.  224.  1  Johns.  Rep.  150.  2  Johns. 
Rep.  526.     S.  C.  affirmed  in  error.     2  Johns.  Rep.  526. 

I'he  arrival  of  another  vess(-l  at  a  port  insured  to,  frO'n  a  port  insured  _/ro7n,  though 
she  may  have  sailed  subsequent  to  the  vessel  insured,  affords  no  ground  for  presum- 
ing the  assured  had  any  knowledge  of  the  bad  weather  the  ai-riving  vessel  had  sus- 
tained, nor  that  the  assured  received  intormation  of  the  sailing  of  his  vessel  by  the 
one  which  arrived,  when  circiinisianci-s  sh<  w  it  might  have  been  received  another 
way.     Williams  v.  Delufeld,  2  Cainea'  Rep  329. 

A  representation  saving,  "  I  am  informed  of  the  vessel's  sailing,  and  she  is  out 
this  day  twcnty-w'x  ilays,"  is  not  an  assertion  as  a  fact,  that  she  is  out  so  long,  and 
therefore  not  a  misrepri-sentalion,  though  she  may  have  been  out  twentv-sevCTJ  days. 
ibid. 

If  a  vessel  be  insured  as  out  of  time,  and  she  be  out  one  more  day  than  the  infor- 
mation received  specifies,  if  the  jury  do  not  find  it  to  be  material,  the  Court  will  not 
say  it  is  so.  ibid. 

If  information  of  the  loss  of  a  vessel  be  known  in  a  place  early  in  the  morning  of 
the  day  on  which  a  policy  is  eff-  cted  at  noon,  it  is  not  proof  of  traud  in  the  assured, 
though  it  be  brought  by  some  of  thi'  crew  of  the  ship  insured,  it  it  do  not  appear 
that  they  had  been  on  shoi'e.  Uvincrston  v.  DelaJiHd,  3  Caines^  Rep.  49,  S.  C 
1  Johns.  Rep.  522. 

If  written  orders  for  insurance  be  laid  before  the  underwriters  by  the  broker, 
who  at  the  same  time  communicates  to  them  verbally  what  is  .said  to  hav  •  been  con- 
tained in  the  written  order,  the  broker  ma\   give  evidence  of  his  oral  declarations, 
though  the  order  be  not  produced.     Livingston  v    DelaHeld,  ibid. 
Where  a  vessel  actually  sailed  on  the  voyage  insured,  concealment  of  the  instroc- 


WRITTEN  CONTRACTS, 


369 

Park  and  Mr.  Serjeant  M/vushall,  it  is  quite  unnecessary  to  no-  Ch.ll.  s.  1. 
tice  in  this  place  the  various  cases  which  may  arise.  Policies  of 

•  •'  Assuiance. 


lions  given  to  the  master  as  to  the  mode  of  prosecuting  tlie  voyage,  is  not  material. 
Talcot  V.  The  Mar.  Ins.  Co.  2  .Tohns.  Hep.  130. 

A  representation  to  one  uiulervvriter  is  not  evidence  of  a  representntion  to  subse- 
quent underwriters  on  a  difT.'reiit  policy  on  the  same  vessel,  and  against  the  same 
i-isks.     Elting  et  nl.  v.  Scott  et  al.  ibid.  157. 

General  intelligence,  contained  in  a  jiublic  gazette,  bearing  upon  the  subject  mat- 
ter of  insurance,  must  be  disclosed  to  the  iiisiu'ers,  though  they  be  subscribers  to  the 
gazette.     JJickenso7i  v.  7'/ie  Commev.  Ins  Co.  Anth.  JW  P.  Cas.  67. 

The  insured  are  not  bound  to  disclose  the  nature  of  the  cargo ;  it  is  the  duly  of 
the  insurer  to  inquire.  Diifilantij  v   'J'he  Commercial  Ins.  Co.  ibid  83. 

Where  the  papers  were  placed  in  the  hands  of  the  insurer,  staling  certain  facts, 
and  he  did  not  read  them,  it  is  his  own  neglect,*an(l  a  policy  shall  not  be  vacated 
therefor.  Vasse  v.  Ball,  2  Ball.  Rep.  '270.   S.  C.  2  Yeates'  Rep   178. 

The  jury  will  determine  whether  there  were  any  concealment  of  material  facts, 
^lurgatroyd  v.  Crawford,  3  IJall.  Rep.  491.  S.  C.  2  Yeates^  Rep.  420. 

If  the  insurance  on  a  special  interest,  (such  as  a  lien,)  and  not  of  a  principal 
o~iCnership,  made  a  material  difference  in  the  risk,  and  the  facts  were  not  suffi- 
ciently disclosed,  the  policy  is  void.     Russel  v.  The  Ins.  Co.  4  Dull.  Rep.  421. 

lieliini  of  premium. 

In  an  action  for  a  return  of  premium,  it  is  competent  for  the  insured  to  shew  the 
ship  not  to  have  been  seaworthy,  because  the  contract  would  be  thereby  rendered 
void.  Porter  v.  liussey,  1  JMass.  Rep.  437. 

If  an  insurance  be  effected  against  the  perils  arising  from  a  blockade,  supposed 
to  exist  in  a  foreign  port,  and  in  fact  no  blockade  existed  at  the  time,  or  while 
the  ship  remained  at  such  foreign  port,  the  insurance  is  void,  and  the  premium 
shall  be  returned.  Taylor  v,  Siumier,  4  Mass.  Rep.  56. 

If  a  policy  become  void  by  a  failure  of  warranty,  llie  insured  is  entitled  to  a  return 
of  premium,  if  there  be  no  fraud.  Dalavigne  v.  The  United  Ins.  Co.  1  Johns. 
Cas.  310.  Murray  et  al.  v.  The  United  Ins.  Co.  2  Bo.  168 

Where  the  policy  never  attaches,  as  if  the  vessel  never  sails  on  the  voyage  in- 
sured, or  if  it  becomes  void  by  a  failure  of  the  warranty,  there  being  no  actual 
fraurl,  the  insured  is  entitled  to  a  return  of  the  pienuum.  Belavigne  v.  United 
Tns.  Co.  1  Johns.  Cas.  310.  Biignet  v.  Rhinelinider,  ibid.  360,  Murray  v.  United 
Ins.  Co.  2  Bo.  168.  .Tackson  v.  A'w  York  Ins.  Co.ibid.  191.  Robertson  et  al.  v. 
United  Ins.  Co.  ibid.  250.  Forbes  v.  Church.  3  Bo.  159.  Graves  v.  Marine  Ins. 
Co  .  2  Caines'  Rep.  339.  Murray  v.  Col.  Ins  Co.  i^  Johns.  Rep.  443.  Richards  v. 
Marine  Ins.  Co.  307.  Elbertsv.  Krafts,  16  Jjhns.  Rep.  128. 

Vide  Juheletal.  v.  Church,  ^  Johns.  Cas.  333,  as  to  a  T'fl/?/erf  policy. 

An  action  for  a  return  of  premium  must  be  brought  against  the  underwriters, 
and  not  against  the  broker.  Boivne  v.  Skuxu,  1  Caines'  Rep.  489. 

An  action  for  a  return  of  premium  will  not  lie  on  account  of  short  interest,  if  tlie 
plaintiff's  interest  to  the  extent  insured  was  covered  at  any  time  during  the  voyage, 
Ho-wlandv.  The  Commercial  Ins.  Co.  ..inth.  JM".  P.  Cas.  14. 

If  the  risk  contemplated  in  a  policy  do  not  commence,  there  is  no  contract,  and 
the  premium  most  be  returned.  Scribuv.  The  JV,  Amer.  Ins.  Co.  1  HalPs  Amer. 
LaviJourn.  36.  C.  C.  Oct.  n07,M.  S-  Rep. 

Average. 
Ifthe  owner  of  a  vessel  which    isw.ickul  have  abandoned  to  the  underwriters, 
•<nd  are  afterwards  compelled  to  pay  the  wages  of  stamen,  the  underwriters  are 
3  R 


370 


ASSUMPSIT, 


Part  If. 

Actions  by 

veiidor. 


Of  the  evidence  in  actions  between  the  vendors  and  vendees  of  lands 

or  goods. 

The  evidence  in  an  action  founded  on  an  executory  contract 
for  the  purchase  of  lands  or  goods,  as  far  as  it  is  aflfected  by  the 


bound  to  reimburse  the  owners,  if  sufficient  for  that  purpose  were  saved  frotn  the 
wreck.  FrotMvgham  et  al.  v.  Prince,  3  Mans.  Hep.  563. 

Wlien,  in  the  course  of  a  voy.ige,  a  ship  insured,  being  damagfd  by  winds  and 
storms,  voluntarily  seeks  a  port  to  refit,  tiie  expenses  consequent  thereon,  including 
the  piovisionsand  wages  of  the  seamen  during  the  detention,  are  a  subject  of  general 
average;  but  the  repairs  are  a  distinct  charge  upon  the  ship.  Padelfurd  et  al.\. 
Boardman,  4  Mass.  Rep  548. 

It  has  been  rul-d  in  Connecticut,  where  live  stock  on  deck  was  thrown  overboard 
to  save  the  vessel  and  cargo,  it  is  entitled  to  a  general  average.  Broiun  v.  CornxueU, 
1  Root's  Rep.  60. 

In  JVew  York,  it  has  been  decided,  that  for  goods  shipped  on  deck  there  is  no 
contribution,  nor  is  the  owner  of  the  vessel  liable  as  a  carrier.  Smith  v.  Wright, 
1  Caiiies'  Rep.  43. 

All  damages  arising  immediately  from  a  jettison  are  to  be  contributed  for,^though 
they  happen  to  perishablf'  articles,  which  are  enumerated  in  the  memorandum,  and 
remain  iu  specie.  Maggrath  v.  Church,  ibid.  196. 

Freight  and  the  vessel  are  to  be  estmiated  in  a  general  average  at  the  place  where 
the  one  is  paid  and  the  other  is  at  the  time  of  settling,  ibid. 

Wages  and  provisions,  during  the  detention  of  a  vessel  captured  and  carried  in 
for  adjudication,  are  subjects  of  general  average.  Leavenivorth  v.  Delqfield,  ibid. 
573.  Sed  vide  j\T Bride  v.  Marine  Ins.  Co.  7  Johns.  Rep.  431. 

If  a  vessel  be  captured  during  her  voK<ge,  in  settling  the  proportion  of  average, 
the  freight  will  be  chafgrable  up  to  the  day  of  capture,  ibid. 

The  amount  on  which  the  average,  in  cases  of  capture  ,is  te  be  calculated,  is  the 
cargo  on  its  first  cost  or  invoice  price,  and  the  charges  at  the  port  of  departure  ;  the 
vessel,  or  four-fifths  of  its  value,  at  the  same  place,  and  the  freight  at  one-half  agreed 
to  be  paid.  ibid. 

If  a  vessel  be  obliged,  from  sea  damage,  to  bear  away  to  a  port  of  necessity  in 
order  to  refit ;  the  wages  and  provisioiis,  from  the  moment  of  bearing  away  to  the 
period  of  her  sailing  on  her  original  vo)age,  constitute  a  subject  of  general  average, 
the  proportion  of  which  may  be  recovered  in  an  action  of  assumpsit  by  the  owners 
of  the  ship  asainst  thi-  proprietDts  of  the  cargo.  JValden  v.  Ze  Roi/,  2  Cairies'  Rep. 
263.  Uenshaxv  v.  Marine  Ins.  Co.  ibid.  274. 

The  charterer  of  s  ship  at  so  much  per  month,  cannot,  on  an  insurance  on  his 
cargo,  recover  the  extra  sum  paid  dunn;;  an  embargo,  such  expenditure  being  the 
subject  of  a  geneial  average,  and  not  covered  by  any  words  of  the  policy.  Penny  et 
al.  v.  JVew  York  Ins.  Co.  3  Caines''  Rep.  155. 

^Vhere  a  vessel  insured  becomes  so  much  injured  by  the  perils  of  the  sea  as  to 
maUe  it  requisite  to  sell  her  in  a  foreign  port,  the  amount  of  the  value  on  which  a 
general  ^-verage  is  to  be  calculated,  is  the  amount  she  actually  and  botmjide  sold 
for,  and  no:  the  four-fifths  of  her  original  value  as  in  cases  of  captw'e.  Bell  et  al. 
V.  The  Columbian  Ins.   Co.  2  Johns.  Rep.  98. 

Tb'-  iMSured  of  the  .9/«y)  may  recover  a  proportion  of  the  expenses  incurred,  in 
attempting  the  recovery  of  the  ship  and  cargo,  of  the  insur-rs  or  owners  of  the  cargo 
Sknd  freight.  Watson  v.  TheMarine  Ins.  Co.  7  Jolms.  Rep.  57. 


VVUITTEN  CONTRACTS.  nfu. 

Statute  of  Frauds,  has  been   noticed  in   a  former  page ;  but  it  Ch.  ii  s.  i. 
will  not  be  improper  to  say  something  further  as  to  the  other    ^•=1'"'"'^  by 


vtniicr. 


The  extraoidinnry  t-xpensis  tor  seaman's  wages,  &c.  during  a  fletenlion  of  the 
vessel  (luring  an  embargo,  cannot  be  recovered  asH|)iirtiHl  loss  from  ihi-  under- 
writers on  the  freif;ht;  tht-y  are  a  (general  average.  Ins.  Co.  of  JYortfi  America, 
V.  Jones  ct  al.  in  the  Hish  Court  of  Enors  and  Appeals,  2  Binn  Rep.  547,  n: vers- 
ing thi'  (!•  cision  of  thr  Supreme  Court  ri-ported  in  4  Dull.  Rep.  246.  Kingston  v. 
Giruril,  iliiil.  274. 

Vide  Ferguson  v.  Fitt,  1  Uayiu.  Rep.  239,  as  to  Average. 

Salvage. 

Salvage  vvill  be  allowed  to  a  U.  States  ship  of  war,  for  the  re-capture  of  a  Ham- 
'juvgh  vessel,  out  of  the  hands  of  the  French  [France  •dmfjjambwgh  being  iieutral 
to  each  other)  on  the  ground  tlint  she  is  in  dang.-r  of  coadeiunation,  under  thf^  French 
decree  of  the  I8lh  Januarj/,  179S.   Talbot  \ .  Seaman,  I  Cranch'.t  Rep.  1. 

To  support  a  demand  for  salvani',  the  re-cHpturc  must  be  lawtul,  and  a  meritori- 
ous service  must  be  rendered,  ibid. 

Where  the  amount  of  salvage  is  not  regulated  by  positive  law,  it  must  be  deter- 
mined by  the  principles  of  general  law.  ibid. 

In  this  case  one-third  of  the  gross  value  of  the  ship  and  cargo  allowed  for  sahage, 
and  one-third  of  the  salvage  allowed  to  the  owner  of  the  saving  ship  and  cargo.  Ma- 
son et  al.  V.  The  Blaireati,  2  Crunch's  Rep.  240. 

If  one  of  the  salvors  embezzle  part  of  the  goods  saved,  he  forfeits  his  right  to  sal- 
vage, ibid. 

If  a  vessel  in  distress  be  abandoned  at  sea,  by  the  mastec  and  crew,  except  one 
man,  who  bj  accident  or  design  is  left,  he  is  discharged  from  his  contract  as  a  ma- 
riner, and  is  entitled  to  salvage,  ibid. 

The  share  of  salvage  due  apprentices,  shall  not  be  paid  to  their  masters,  but  to 
themselves,  ibid. 

Insurance  on  freight. 

Uaderwriters  on  freight,  are  not  liable  for  a  det<ntion  of  the  ship  on  the  voyage, 
if  she  finally  earn  her  freight.  Matjo  v.  The  MEaine,  &c.  Ins.  Co.  4  jMass.  Rep, 
374. 

By  a  valued  policy  on  freight  "  at  and  from"  one  port  to  another,  and  "  at  and 
from  thence,"  back  to  the  original  port,  for  which  aprirmium  is  paid,  douole  to  that 
which  would  be  demanded  on  the  outward  vojage,  the  freight  to  the  tull  amount 
of  the  valuation  is  covered  on  each  voyage,  and  the  msure<l  in  case  of  capture  on  the 
return  voyage,  is  entitled  to  recover  the  full  amount,  without  any  deduction  for  the 
freight  received  on  the  outward  risk      Davi)  v   Hallett,3  Caines'  Rep.  16. 

On  a  valued  policy  for  freight,  if  there  be  an  inchoate  right  to  some,  and  the  tran- 
saction be  bonajide,  the  vsilue  cannot  be  inquired  into.  ibid. 

If  a  ship  owner  insure  his  vessel  and  fre.ight  with  two  s>-ts  of  underwriters,  and 
on  capture  abandon  first  to  those  on  ihe  vessel,  and  then  to  those  on  the  freight,  af- 
ter wliich  he  receives  50  prr  cent-  of  his  claim  on  the  underwriters  of  the  vessel  and 
in  payment  of  the  other  50  per  cent,  takes  an  assignment  of  their  rights  on  the  ves- 
sel, he  will  be  entitled  to  receive  the  freight  to  which  they  would  have  been  en- 
titled, and  to  recover  in  his  own  right  from  the  assurers  of  the  treigiit  the  full  amount 
of  his  policy,  deducting  I  he  pro  ra<«  freight  earned,  previous  to  the  abandonment, 
in  the  voyagp  on  which  I'aptured.  ibid. 

Under  a  policy  on  freight,  the  gross  amount  is  on  a  total  loss,  the  sum  to  be  reco- 
vered.   Stevens  v.  The  Col.  Ins.  Co.  ibid.  43. 


3^2  ASSUMPSIT. 

Purl  II.      evidence  necessary  to  sustain  an  action  on  such  a  contract.  The 
Aciii  ns  by    contract  bein*  established,  the  plaintiff  must  shew  that  he  has 


Insurance  on  freight ;  the  vesst- 1  being  obliged  to  put  into  a  port,  of  necessity,  llie 
cargo  on  being  taken  out,  in  order  to  rc-paii-  the  vessel,  was  found  to  be  greatly  de- 
teriorattd,  and  not  fit  to  be  re-shipped,  and  was  accordingly  sold ;  the  vessel  was  re- 
paired. So  as  to  be  able  to  prosecute  the  voyage :  the  insured  cannot  recover  for  a 
loss  of  the  freight,  as  the  subject,  although  damaged,  still  remained  iws/jede.  Sallits 
et  al.  V.  T/ie  Ocean  Ins.  Co.  1^  Johns.  Rep.  138. 

A  vessel  was  cliarlered  on  a  voyage  from  JK'ev}  York  to  Jeremie,  and  back  to  J\Vw 
York  for  2.400  dollars,  the  charlei-ee  insured  the  "freight  valued  at  1,700  doUai-s, 
being  ihree-lourths  of  the  value  of  the  freight,"  "  on  a  voyage  from  Jamaica  to  JWiu 
York  upon  the  freight  Wgoods  laden  or  to  be  laden,"  &c.  The  vessel  having  been 
captured  on  her  return  vo3agfc  and  condemned,  the  charteree  brought  an  action  on 
the  policy,  and  it  was  held,  he  had  not  an  insurable  interest;  that  the  policy  having 
descriluMJ  (be  freiglit  generally,  it  could  not  be  considered  as  freight  earned.  Che- 
riot  V.  Barker,  2  Johns.  Jiep.  346. 

A  vessel  and  freight  were  insured  by  the  same  underwriters,  by  two  different 
open  policii  s  of  insurance,  on  a  voyage  from  JVeiv  York  to  the  r:ver  La  Plata,  and 
at  and  from  ihence  to  a  po'  t  in  Europe.  The  ship  arrived  at  Buenos  Jlyres  on  IStii 
February,  180'2,  under  a  charter  party  for  freight,  and  delivered  her  cargo  there, 
but  was  detained  by  an  embargo  there,  until  1st  October,  1802,  when  she  sailed  for 
Havre  de  Grace,  in  France  ;  where  she  arrived  in  December,  1802;  an  abandon- 
ment of  ship  and  freight  was  made  on  29lh  June,  1802,  but  was  not  accepted  ;  in  an 
action  on  the  policy  on  freight,  the  insured  was  held  entitled  to  recover  as  for  a  to- 
tal loss.     I^ivingston  v.  Col-  Ins.  Co.  3  Johns.  Rep.  49. 

Freight  is  a  distinct  sui  ject  of  insurance,  and  a  previous  abandonment  of  the  ship 
to  one  insurer  will  not  prevent  the  insured  from  recovering  the  freight  insured  by 
another,  ibid. 

Whether  the  abandonment  of  the  ship  deprives  the  owner  of  freight  of  his  sal- 
vage, ibid 

AVhether  the  insurer  of  the  ship  is  to  account  to  the  insurer  of  the  freight,  for  the 
freight  earned  subsequent  to  the  abandonment,  ibid. 

The  underwriters  on  freight  are  not  liable  for  the  extra  expenses  of  seamen's 
wages  and  provisions  during  an  embargo,  but  they  are  a  subject  of  general  average. 
Jones  V.  The  Ins.  Co.  ofJW  America,  2  Binn.  Rep.  547.  4  Ball.  Rep.  246.  Du- 
bitatur,  Kingston  v.  Girard,  ibid.  274. 

A  cargo  was  carried  to  a  foreign  port  upon  contract,  and  there  tendered  to  the 
consignee  ;  but  the  government  refusing  permission  to  land  it,  it  was  brought  back, 
the  freight  was  held  to  be  earned,  and  the  assured  in  a  policy  on  freight  was  not  en- 
titled to  recover  for  a  total  or  partial  loss.  JMorgan  v  The  Ins.  Co.  ofj\'.  America, 
ibid.  i55. 

Freight  paid  in  advance,  is  an  insurable  interest,  and  liable  to  an  average  loss  ; 
and  the  assured  in  a  policy  on  freight  advanced  may  recover  an  average  loss  arising 
from  the  payment  of  salvage.     Sansom  v.  Ball, ibid.  459. 

Insurance  from  Jire. 

In  ail  action  on  a  policy  of  insurance  made  against_;?re,  on  merchandises  and  uten- 
sils, among  which  were  380  kegs  of  manufactured  tobacco,  stated  on  the  back  of 
the  policy,  "  as  worth  9, GOO  dollars,"  157  kegs  of  which  were  destroyed  by  fire  ;  it 
was  helfi  that  the  insured  was  entitled  to  recover  according  to  the  valuation  of  the 
vhole  number  of  kegs,  and  not  the  costs  of  the  tobacco  at  the  manufactory,  or  prime 
cost.  Where  there  is  an  absolute  loss  of  any  article  distinctly  valued  in  the  policy, 
the  loss  is  to  be  estimated  according  to  the  valuation,  it  being  in  the  nature  of  li- 


WRITTEN  CONTRACTS.  3173 

done  every  thing  in  his  power  to  carry  it  into  execution,     lie  Ch.  II.  s.  i, 
must,  in  cases  where  he  was  the  seller  of  lands,  prove  that  he    ^^l\°^^!'^ 


quidated  damages.    Harris  v.  T/ie  Eagle  Fire  Ins.  Co.  of  JVexv  York,  5  \Tohns. 
Jiep.  368. 

liotlomry,  &c. 

Money  vas  lent  on  bottomry,  the  bond  to  be  void  if  lost  tlirough  tbe  perils  of  the 
sea,  or  by  fire,  or  by  enemies  ;  the  vessel  was  captured,  condemned  as  lawful  prize, 
and  upon  appeal  the  condemnation  was  reversed  and  full  compensation  made  to  the 
owner  ;  it  was  held  the  obligee  could  not  rtcoverin  an  action  of  debt  brought  on  the 
bond.     Appletonv.  Cr07vniiis/tiel(l,3  Jllass.  Hep.  iiS. 

An  insurance  on  a  vessel  will  not  cover  a  bottomry  interest  unless  it  be  expressly 
mentioned  in  the  policy.  Robertson  v.  The  United  Ins.  Co.  2  Johns.  Cas.  250. 
Kejiny  v.  Clarhson,  1  Johns.  Rep.  385. 

A  clause  of  sair;  in  a  bottomry  bond  does  not  destroy  its  character  or  operation, 
1  Johns.  Cas.  250. 

An  insurance  by  the  holder  of  a  bottomry  bond  must  be  made  eo  riomine.  Kenny 
V.  Clarksoji,  1  Johns.  Rep.  385. 

An  agreement  by  a  lender  on  Respondentia  "  to  be  liable  to  average  in  the  same 
manner  as  underwriters  on  a  policy  of  insurance  according  to  the  usages  and  prac- 
tices of  the  city  of  Philadelphia,''''  does  not  entitle  the  borrower  to  calculate  an  ave- 
rage loss  upon  the  whole  amount  of  the  money  loaned  and  the  marine  interest,  but 
merely  on  the  cost  and  charges  of  the  goods  on  board  and  the  premium  of  insurance. 
Gibson,  v.  The  Phil.  Ins.  Co.  1  Binn,  Rep-  405. 

'Action  on  policy  of  Insurance. 

If  a  policy  of  insurance  be  efft-cted  in  the  name  of  .--2.  as  agent  for  S.  this  latter 
cannot  maintain  an  action  on  the  policy  to  recovi-r  a  loss  tor  the  use  of  C.  whom  he 
declares  alone  interested  in  the  property  insured.  Russel  v.  The  A'iew  England 
Ins.  Co  4  jyiass.  Rep.  82. 

Several  underwi-iters  on  the  same  policy  may  join  in  a  bill  in  Chancery  against  the 
insured.     Jiiilhleyv.  Starr,  2  Day's  Rep.  553. 

Evidence  to  prove  the  interest  in  the  cargo  was  admitted  by  knowing  the  articles 
bought  by  the  plaintifl'and  seeing  them  goon  board  ;  intei-est  in  the  vessel  v/SiS  ad- 
mitted to  be  proved  by  the  person  who  saw  the  original  register  in  the  name  of  the 
owner  when  she  was  about  to  sail  on  the  voyage  insured.  Peytony.  Hallett,  1 
Caines''  Rep.  363. 

In  judging  whether  a  vessel  be  lost  or  not,  the  usual,  and  not  the  utmost,  length 
of  such  voyage,  is  the  period  on  which  the  jury  will  proceed.  Drown  v.  j\'eilson, 
ibid.  535. 

If  two  storms  be  given  in  evidence  on  a  policy  for  time,  the  one  within,  the  other 
-uiithout,  the  period,  it  is  for  the  jury  to  say  in  which  the  loss  happened,  ibid. 

An  insurance  on  freisht  and  cargo,  after  a  knowledge  of  a  storm,  does  not  ex. 
elude  the  jurv  from  finding  the  vessel  iost  in  a  previous  storm,  ibid. 

AVhethf-r  a  vessel  which  moves  down  a  river  on  th  ■  voyage  insured  has  actually 
viiled  on  it,  is  a  fic*  de|)ending  on  circumstances,  and  the  quo  animo  of  which  the 
(ury  will  judge.     Dennis  v.  Ludlow,  2  Caines'  Rep.  111. 

The  jury  have  discretion  to  allow  or  not  interest  on  the  amount  of  a  partial  loss 
on  a  policv.     Anonymous,  1  Johns.  Rep.  312. 

\Vhether  :in  abandonment  was  accepted  or  not,  is  a  question  of  fact  for  a  jury  to 
-lecide.     Jiell  v.  The  Col  Ins    Co.  2  Johns.  Rep.  98. 

An  insurance  on  a  vessel  was  made  with  a  clause  "  that  the  loss  was  to  be  paid 


374  ASSUMPSIT. 

Part  II.     has  delivered  an  abstract  of  his  title  to  the  defendant,  and  have 

vt"°or. ^   the  title  deeds  ready  to  produce,  but  he  will  not  be  called  on  to 

_______  prove  theni.(l)     He  must  then  prove  either  that  he  has  prepared 

(i)Thom|).    and  tendered  a  conveyance  properly  executed,  to  the  defendant, 

son  7;.  Allies,  and  oftered  to  deliver  it   to  him,  on  payment  of  the  purchase 

money  ;  or  else  that  he  has  tendered  a  draft  of  a  conveyance,  and 

that  the  defendant  has  absolutely  refused  to  go  on  with  his  con- 

(2)  Gootlison  tract,  and  discharged  the   plaintiff  from  proceeding  in  it.(2)(a;) 

V.  Nunii,  4T. 


Rep.  761. 


in  thirty  days  after  pioof  thereof ;"  the  da>-  after  sailing  she  sprang  a  leak  and  foun- 
dered. In  an  action  on  the  policy,  it  was  helil  that  theexhibitiog  the  protest  of  the 
master  slating  the  loss  was  a  sufficient  compliance  with  the  clause  in  the  policy  as  to 
preliminary  proof,  and  that  prelimiiiary  pioof  of  interest  was  not  necessary.  Tal- 
cot  V.  The  Jilurine  Ins.  Co.  ibid.  130. 

An  insurer,  who  has  paid  a  loss  oti  a  policy,  cannot  recover  back  the  money  unless 
he  made  out  a  clear  mistake  as  to  the  law  or  fact.  Eltiiig  et  al.  v.  Scott  et  al.  ibi({. 
157. 

Whether  an  insurer,  who  has  paid  a  loss  on  a  policy,  can  recover  back  the  money 
unless  he  make  out  a  clear  mistake  as  to  the  law  or  the  fact.  ibid. 

Where  a  vessel  was  insured  and  the  policy  contained  a  clause  "  that  if  the  vessel 
on  a  regular  survey  should  be  declared  unseaworthy  by  reason  of  her  being  unsound, 
or  rotten,  or  incapable  of  prosecuting  her  voyage  on  account  of  her  being  unsound 
or  rotten,  the  insurers  should  not  be  bound  to  pay,"  &c.  during  the  voyage  the  ves- 
sel was  surveyed  and  condemned  as  not  worth  the  repairs,  and  the  insured  offered 
to  abandon  ;  the  survey  was  held  a  necessary  part  of  the  preliminary  proof  to  be  ex- 
hibited to  the  insurers,  and  ought  to  have  been  produced  to  them  with  the  other 
documents,  before  the  commencement  of  the  suit,  or  some  account  given  why  it  was 
not  pro<Iuced.    Huff  v.  The  Marine  Lis.  Co.*  Johns   Rep.  132. 

The  insurer  may  recover  above  the  sum  insured  for  the  expense  of  labour  and  tra- 
vel for  the  defence  and  recovery  of  property  insured.  JVatsonv.  The  JMar.  Ins.  Co. 
7  Johns.  Rep.  57. 

And  where  expenses  ai-e  incurred  for  the  recovery  of  the  ship,  the  insured  may 
recover  the  whole  amount  against  the  insurer  on  the  ship,  though  the  freight  and 
cargo  be  incidentally  benefited,  and  ousjht  to  contribute  in  proportion;  leaving  the 
insurer  of  the  ship  to  recover  the  same  of  the  owners  or  insurers  of  the  freight  and 
cargo,  ibid. 

A  survey,  though  a  useful  and  proper  document  to  many  purposes,  is  not  an  es- 
sential piece  of  evidence  to  make  out  the  title  of  the  insured  to  his  indemnity.  Ben- 
taloe  v.  Pratt,  I  WaWs  Rep.  61. 

WhethiJT  the  usage  and  established  custom  of  a  port  requiring  a  survey,  would 
control  or  modify  a  general  law.  ibid. 

The  jury  may  find  damages  for  a /(arftailoss,  though  the  declaration  claimed  a 
total  loss.   Watson  et  al.  v.  The  Ins.  Co.  ofjVorth  .America,  4  Ball.  Rep.  283. 

TiLGHMAX  C.  J.  in  the  case  of  Bvoitm  v.  The  Phoenix  Ins.  Co.  4  Binn.  Rep. 
464,  says,  "  I  do  not  consider  the  law  as  settled  by  this  decision.  The  Court  was 
not  unanimous.  There  certainly  are  some  weighty  objections  to  the  principle 
adopted  by  the  Court  in  this  case." 

Assumpsit  will  not  lie  on  a  policy  of  insurance  under  the  corporate  seal,  unless  3 
new  consideration  be  averred.  Insurance  Co.  of  Alexandria  v.  Young,  I  Crunches 
Rep.  332.— Am.  Eo, 

(x)  In  JVlassachnsetts  it  has  been  ruled  that  where,  in  contracts  for  lands,  one 
overreaehes  another,  by  false  allegations,  or  fraudulent  concealments,  the  law  will 


WRITTEN  CONTRACTS. 


375 

In  the  case  of  goods  which  are  themselves  the  subject  of  de-  Ch  n.  s.  i. 
iiverj,  and  where  by  the  terms  of  the  contract  they  were  to  be    A.ctions  by 

delivered  by  the  plaintiif,  it  must  be  proved  that  they  were  taken  ' 

to  the  place  of  delivery  at  the  appointed  time,  or  else  that  the 

compel  him  to  pay  over  the  money  obtained  by  such  means,  to  the  party  to  whom 
in  equity  and  good  conscience  it  belongs.  Bliss  v.  Thompson,  4  JMass.  Rep.  488. 

An  obligation  given  fop  compounding  a  felony,  cannot  be  enfoi'ced  by  iUa  party  to 
■«hom  it  is  given.  Tlie  Inhabitants  of  JVorcester  v.  Eaton,  11  Do.  368.  Stuett  et  a/. 
V.  Poor  et  ah  ibid.  549. 

In  Vermont,  in  an  action  on  a  note  given  for  the  price  of  lands,  the  defendant  may, 
under  the  plea  of  no7i  assunipsit,  give  evidence  of  fraud  on  the  part  of  the  piaintift'to 
avoid  the  note.  Hawley  v.  BeemaJi,  2  Tyl.  Rep.  238. 

So  an  action  for  fraud  in  the  sale  of  lands,  may  be  supported  by  parol  testimony, 
and  it  is  not  necessary  that  \.\\fi  fraud  should  be  app<-irent  on  the  deed.  Sandfurdv. 
Rose,  ibid.  428. 

In  Connecticut,  in  an  action  for  fraud,  in  the  sale  of  certain  lands,  if  it  appear  that 
both  parties  had  an  equal  opportunity  of  informing  themselves,  the  plaintiff  shall  not 
recover.  Strong;'  v.  Peters,  2  Root''s  Rep.  93.  I 

An  action  for  fraud  in  the  sale  of  lands,  will  lie  against  the  grantor  and  others, 
notwithstanding  the  covenants  of  seizin  on  the  deed.  Bost-wick  v.  Letuis,  1  Day''s 
Rep.  250. 

No  action  lies  against  the  vendors  of  real  estate,  for  false  and  fraudulent  repre- 
sentations, respecting  its  quality  and  situation.  Sherivood  v.  Salmon,  2  Day''s  Rep. 
128. 

In  a  recent  case  it  is  doubled  whether  an  action  of  assumpsit  will  lie  to  recover 
back  the  purchase  money  of  real  estate,  where  such  monev  was  obtained  by  false 
and  fraudulent  representations  as  to  title?  Young'  v.  Kenyan,  ibid.  252. 

In  a  sale  of  lands,  where  the  party  has  not  received  the  thing  contracted  foi-,  but 
a  different  thing  which  is  of  no  value,  he  may  recover  the  consideration  paid  for  the 
land,  in  an  action  of  indebitatus  assumpsit,  for  money  had  and  received.  Sandford 
X.  Dodd,  ibid.  437. 

In  JVew  York,  where  the  trustees  of  an  absconding  debtor  appointed  under  the 
Act  of  that  State,  sold  his  lands,  and  gave  a  deed  conveying  all  ihe  debtors  right  and 
title,  and  the  purchase  was  evicted  of  a  part  of  the  land,  it  was  hild  that  the  trus- 
tees were  not  liable  to  refund  any  part  of  the  purchase  money.  Trustees  and  per- 
sons acting  in  auter  droit,  are  not  liable  unless  there  he  fraud  or  an  express  war- 
ranty. Murray  v.  TM^ees  of  the  RingTuood  Company,  2  Johns.  Cas  278. 

In  Pennsylvania,  X\\e  maxim  oi  caveat  emptor ,  applies  to  the  sale  of  real  estate, 
Boyd  V.  Bopst,  2  Ball.  Rep.  91. 

Wherever  there  is  a  gross  misrepresentation  of  facts  relating  to  the  subject  of  the 
contract,  the  same  is  void  and  fraudulent.  Cochran  et  at.  v.  Cummings,  4  Dull.  Rep. 
250. 

Where  the  plaintiff,  through  imposition,  mistake,  or  deceit,  paid  money  for  land, 
the  purchaser  can  recover  it  back  in  an  action  oi  assumpsit,  for  money  bad  and  re- 
ceived. D'Ulricht  v.  Melchor,  I  Dall.  Rep.  428. 

So  in  an  action  on  a  bond  given,  for  the  price  of  lands,  want  of  title  may  be  given 
in  evidence,  to  avoid  the  payment  of  it,  even  though  there  were  no  eviction.  Carna- 
han  v.  Ilaa,  Jlddis.  Rep.  127. 

Equity  will  not  decree  the  specific  execution  of  an  agreement  respecting  lands, 
the  title  whereof  is  defective  ;  and  in  Pennsylvania,  where  the  Cowts  of  La^v  ttx- 
ercise  ceitain  equitable  powers  a  man  will  not  be  compelled  to  pay  lor  lands  wliich 
he  has  purchased,  though  even  with  general  warranty,  where  it  plainly  appears  that 
he  cannot  obtain  a  good  title.     Per  YmTi;s  .J.  Stoddart  v.  Smith,  5  Binn.  Rep  355. 

In  a  similar  suit,  on  a  bond  given  for  lands  in  another  State,  the  title  comes  into 


376 


Part  U. 

Actions  by 

vendor. 


(1)  Glaze- 
brook  V. 
Wood  row, 
8  T.  Rep. 
366.  Jones  v. 
Berkley, 
Dougl.  687, 


ASSUiMPSIT. 

plaintift' being  ready,  and  offering  to  deliver  them,  the  defendant 
precluded  the  necessity  of  a  formal  tender  by  a  refusal  before- 
hand to  complete  his  contract.(l)  If  they  were  to  be  fetched 
away  by  the  defendant,  it  must  be  shewn  that  the  plaintiff  was 
ready  to  have  delivered  them  at  the  time,  but  that  the  defendant 
did  not  come  or  send  for  them.(y) 

question  incidentally,  and  may  be  used  as  a  defence  to  such  suit.  Clarke  v.  M.'In- 
tire,  Addis.  Rep.^35. 

If  there  be  in  the  sale  of  lands,  any  wilful  misrepresentation  or  concealment  of  any 
material  circumstance,  it  is  such  a  fraud  as  will  secure  damages  proportioned  to  the 
injury    fVoy^k  v.  Grier,  ibid.  372. 

In  Virginia,  on  a  sale  of  lands,  if  there  be  not  a  full  representation  of  all  the  facts, 
it  will  be  a  good  ground  of  avoiding  the  sale.  Joliffe  v.  Hite,  1  Call's  Rep.  301. 

Fraud  is  a  grpund  of  setting  aside  a  sale  of  lands,  even  though  perfected  by  con- 
Teyance.  Vance  v.  Walker,  3  Hen.  &  Munf.  Rep.  288.  iS'.  P.  Walker's  exrs.  v, 
Aicklin,  2  Munf.  Rep.  357. 

On  a  writ  of  error  from  Kentucky,  to  the  Supreme  Court  of  ithe  United  States, 
it  was  held  that  the  vendor  of  real  estate  who  sells  on  a  description,  is  bound  in 
equity  to  raake  good  that  description,  and  if  it  be  untrue  on  a  material  part  though 
through  mistake,  yet,  he  is  liable  forthat  variance,  J\t- Ferrari  y .  Taylor,  5  Cranch-s 
Rep. 'in. 

■\Vhether  if  the  mistake  be  a  matter  deemed  perfectly  immaterial  by  both  parties, 
and  would  not,  if  known,  have  varied  the  contract,  and  of  which  both  parties  were 
ignorant,  ought  a  Court  of  E(iuity  to  interfere?  ibid. 

So  in  JK'orth  Carolina,  a  recovery  cannot  be  had  on  a  note  given  for  the  purchase 
of  lands  to  which  the  vendor  had  no  title,  Welch  et  al.  v,  Watkins,  1  Hayw.  Rep. 
369. 

In  South  Carolina,  misrepresentations  as  to  the  situation  and  quality  of  lands,  are 
a  ground  of  rescinding  the  contract,  and  may  be  given  in  evidence  against  a  bond 
given  for  the  consideration  money,  under  the  discount  Act  of  that  State,  The  State 
V.  Gaillard,  2  Bay's  Rep.  11. 

The  receipt  of  a  full  and  valuable  consideration  in  law,  raises  an  implied  war- 
ranty against  all  faults  knoxvn  and  unknowji  to  the  seller,  ibid.  19. 

At  a  Sheriff's  sale,  caveat  emptor  is  the  rule,  and  the  purchaser  buys  at  his  own 
risk.   Creditors  of  Thayer  v.  Sheriff  of  Charleston  District,  ibid.  169. 

In  Kentucky,  in  the  sale  of  a  tract  oi  land,  the  vendor  committed  a  fraud  on  the 
vendee,  by  which  the  estate  was  lessened  in  value,  and  the  Court  under  the  particu- 
lar circumstances  of  the  case,  did  not  set  aside  the  contract,  but  decreed  a  pecu- 
niary cdmpensation  to  the  vendee.  Porter  v.  Breckenridge,  Hardin's  Rep.  21. 

So  where  the  vendees  of  land,  agreed  to  risk  the  title,  this  was  construed  to  mean 
against  conjlectitig  titles  only,  and  that  the  vendor  was  answerable  for  a  defect  oc- 
casiont- d  b)  a  latent  equity,  to  pay  off  the  title  which  he  sold.  Pile  v.  Shannon, 
ibid.  53. 

Where  land  is  sold  with  warranty,  and  the  vendee  is  evicted,  he  ought  to  recover 
of  '  he  vendor,  not  the  value  of  the  land  at  the  time  of  eviction,  but  the  purchase 
money  with  interest  and  costs.  Loivther  v  The  Commonwealth,  1  Hen.  £if  JMunf 
Rep.  202. 

Svhere  a  pi-rson  was  bound  to  procure  a  tract  of  land,  of  a  particular  description, 
by  the  time  tin-  plaintiff  shall  come  of  age,  and  failed  in  so  doing,  the  damages  wil  I 
be  apportioned  accoriiing  to  the  value  of  the  land  at  the  time  he  arrived  at  such  an 
age.  Hoivard  v.  Person,  2  Hayw.  Rep  336. — Am  Ed. 

Sales  of  Chattels. 
(i/)  In  a  sale,  if  there  be  neither  -ivarranty  nov  fraud,  the  purchaser  buys  at  his 


WRITTEN  CONTRACTS.  3^^ 

The  defendant  may  avoid   the  contract  by  shewing  that  the  ch.  il  a.  i. 
plaintiff  was  not  able  to  fulfil  it  on  his  part,  or  was  guilty  of  fraud    '\.';^,Xr!'.^ 

in  tlie  making  of  it.     If  the  defendant  prove  that  the  plaintiff 

has  not  a  title,  it  is  a  sufficient  answer  to  the  action;  and,  in  one 

ease, (I)  where  two  different  lots  had  been  sold  at  an  auction,  (i)  Gibson  w, 

which  the  purchaser  bought  for  their  contiguity  to  each  other,  |.||"['|Jj'j'j'j.  "" 

and  the  vendor  liad  not  a  good  title  to  one  of  them.  Lord  Ken-  Mich.  T.  36 

TON  held   this  fact  as   sufficient  reason  for  his  rescinding  his  Qi'^^'^hers  u. " 

contract  as  to  both  ;  and  whether  the  objection  to  the  title  be,  f^"ffit'>s. 

that  such  title  is  insufficient  at  law,  or  that  there  are  equitable  150, s.  P. 

claims  which  would  prevent  the  vendee  from  safely  holding  the 

purchased  premises,  it  is  equally  an  answer  to  the  action  of  the 

vendor,  or  the  foundation  of  one  at  the  suit  of  the  purchaser; 

for  the  intention  of  the  contract  being,  that  the  purchaser  should 

have  a  good  title  to  the  premises  purchased,  neither  a  Court  of 

Law  nor  of  Equity   will  compel  him   to  take  premises  w'uich 

may  be  immediately  taken  from  him,  orburthened  with  a  charge 

which  he  did  not  contemplate  or  provide  against.(z)     In  one 


peril ;  and  no  action  will  lie  against  the  vendor,  if  the  articles  afterwards  turn  out  de- 
fective. Sexiaa  v.  Woods,  2  Caines''  Rep.  48.  S.  P.  Snelletal.  v.  JMoses  et  al. 
1  Johns.  Rep.  96.  Pern/  v.  Jlaron,  ibid.  1129.  Defreeze  v.  Trumper,  ibid.  274. 
Holden  v.  Dctkin,  4  Do.  421 . 

But  there  is  an  imjilied  warranty  as  to  the  title  of  the  vendor.  Defreexe  v.  Truiii' 
per,  1  Johns.  Rep.  274.  Et  vide  If'ermance  v.  Venvjy,  6  Do.  5. 

A  fair  price  paid  for  an  article,  does  not  imply  a  warranty  of  sounilness.  Sexias 
V.  Woods,  2  Caines^  Rep.  48.  Holden  v.  Dakin,  4  Johns.  Rep.  421. 

Where  the  vendee  purchases  chattels  on  sight,  which  the  vendor  affirms  to  be 
worth  much  more  than  their  rv al  value,  no  action  lies,  there  being  neither  fraud  noc 
Warranty.  Davis  v.  Meeker,  5  Johns.  Rep.  354. — Am.  Ed, 

(2)  If  at  the  time  of  the  contract,  there  is  a  lease  outstanding,  which  was  unknown 
to  the  vendee,  he  is  not  bound,  but  mav  rescind  the  contract,  the  vendor  not  being 
in  a  situation  to  give  a  perfect  title.   Tucker  v.  Woods,  12  Johns.  Rep.  190. 

A  registered  mortgage  on  the  land,  is  such  an  incumbrance  as  authorises  the  pur- 
chaser to  rescind  the  sail  ,  although  the  rrgistiy  is,  zn  laiv,  construciivt-  nf>tice  of 
the  existence  of  the  mortgnge.  Judion  v.  Wuss,  II  Do.  525.  Et  vide  Fa«  Jien- 
thuysen  et  al.  v.  Crapser,  8  Do.  198. 

A  purchase  of  land,  with  notice  of  a  previous  agreement  between  the  vendor  and 
another,  takes  the  land  subject  to  the  agreement.  Xes.  of  Simon  v.  Gibson  et  al. 
I  rentes'  Rep.  291. 

Legal  notice  exists  only  when  there  is  a  violent  presumption  of  actual  notice. 
Z/e.?.  of  Billington  v.  Welsh,  5  Binn    Rep.  129. 

Whether,  in  general,  possession  i^  evidence  of  a  claim,  dubitatur.  Covert  et  al. 
V.  Ir-win  et  al.  3  Serg   &  R   Rep   283. 

Lis  pendens,  is  a  safficient  notice  to  a  purchaser.  Walker  v.  Butz,  I  Ycatesi' 
Rep.  574 

Where  lands  are  sold  at  auction  in  separate  lots,  and  several  of  the  lots  are  pur- 
■hased  by  one  person,  it  is  not  an  entire  coniraci;  and  if  the  vendor  cannot  give  a 

3  C 


gyg  ASSUMPSIT. 

Pi.it.  If.     case(l)  the  Court  of  King's  Bench  said,  that  a  Court  of  Law 
Actions  by    could  not  take  notice  of  an  equitable  title  ;  but  in  subsequent 

cases, (2)  where  the  point  came  directly  before  the  Court,  it  was 

(\)  \'i'«<i- 7'  holden  that  an  equitable  objection  to  the  title  was  equally  strong 
Waikii  s,8  T.  with  one  founded  on  a  legal  defect.  In  general  the  title  ought 
^'''  '  to  be  complete  at  the  time  by  which  it  was  stipulated  to  be  made, 
(2)  Elliott  tj.  tjy^  \J^  one  case;  3)  where  the  defendant  absolutely  refused  tore- 
3  Bos.  &  Pill  ceive  any  abstract,  Lord  Kenyon  held  it  to  he  sufficient  for  the 
181  plaintiff  to  shew  a  title  at  the  time  of  the  trial,  thoueh  in  fact  it 

'\l»l>eiliv  V-     '  '  o 

Roi.ms,  '  was  not  complete  when  he  commenced  his  action.  The  employ- 
5  1  aunt.  6e+  ,Yient  of  puffers  by  the  seller, (4)  whereby  the  price  was  raised 
(.';)Tiinin;isoiiupon  the  bona  fide  bidder,  there  being  but  one  person  who  really 
V  Mii.-s,  1  i^j^i  i^^j,  ]^(^Qn  held  to  furnish  a  defence  to  an  action  for  not  com- 
pleting  the  contract.  But  in  the  Court  of  Chancery  Lord  Al- 
rtc^sil^'o  VANLEY,  when  Master  of  the  Rolls,  held(5)  that  the  circum- 
T.  Rep.  042.   stance  of  a  person  being  employed  to  buy  in  the  estate,  if  the 

(5)  Braraw-ilhiddings  did  not  ;imount  to  a  certain  sum,  and  bidding  accord- 
r.  Ai',  .3  Vcs.inorly,  at  a  sale  which  was  attended  by   several    real  and  bona 

fide  bidders,  was  not  sufficient  to  enable  the  highest  bidder  to 
avoid  his  contract. 
Action  bv  When  the  action  is  brought  by  a  purchaser,  he  must  shew  that 

vendee,  }ie  was  reatly  to   have  accepted  the  thing  purchased  at  the  ap- 

pointed time,  and  to  have  paid  the  stipulated  price  ;  to  prove 
which,  he  must  in  general  give  evidence  that  he  tendered  the 
money,  and  in  the  case  of  a  sale  iff  lands,  a  conveyance,  or  draft 
of  one,  and  demanded  the  execution  of  the  conveyance,  or  de- 

(6)  Morton     livery  of  the  goods, v6)  or,  if  they  were  to  be  taken  to  a  certain 
T-. Lamb.n.pigcg  ^y  the  seller,  that  he  was  at  the  appointed  place  ready  to 

receive  them,  and  prepared  with  his  money  to  have  paid  for  them 
C^||^'|"^^""^'-on  delivery.(7^     But  where  the  seller  has  refused  to  deliver  the 
1  Easi,  203.    goods,  the  very  fact  of  the  buyer  demanding  them,  will  be  evi- 
/gx^yjjljgg  ^  dence  of  his  being  prepared  witii  the  money.(8)     And  in  the 
Aii:in3oii,       case  of  a  sale  of  lands,  where  a  deposit  has  been  paid,  and  the 
^  "'^^  '     ''seller  refuses  to  deliver  an  abstrart,  or  delivers  one  which  shews 
he  cannot  tnake  a  good  title,  it  is  i>jt  necessary  for  the  purcha- 
ser to  prepare  a  conveyance  :  but  in  case  he  has  done  no  act  ts 
affirm  the  contract,  he  may  immediately  bring  an  action  for  mo- 
ney had  and  received  against  the  auctioneer  for  the  money  de- 
(9)  Spwar<i    posited. (9)  If,  however,  he  has  taken  possession  of  the  premises, 

V.  \A  lilock, 

5  East,  202.      : 

till*  as  to  hII  the  lots,  the  vendee  cannot  rescind  tlie  agreement  in  toto,  but  must 
take  a  convr\ance  for  siuh  ot'llie  lots  us  thi  vi-nrl'  e  is  riUihonsed  to  convey.  Van 
Eps  V.  The  Mayor,  &c.  Schenectady,  12  Johns.  Rep.  436. — A.m.  Ed. 


WRITTRiV  CONTR\CTS,  gyg 

ar  made  any  alteration  in  them  so  as  to  alter  the  condition  of  the  Ch.  IT.  s.  l. 
seller,  he  cannot  maintain  this  action,  hut  must  bring  a  special  ^,^|,"J|.' .''^ 
action  on  the  contract.(l)  _^ 

Contracts  for  the  sale  of  goods  are  generally  made  on  the  ex-M\  fjuni  ■u. 
pectation  of  a  rise  or  fall  in  the  price  of  fluctuating  commodity,  ^i'^''.  5  East, 
and  the  person  whose  speculation  has  failed,  frequently  breaks 
his  contract.  In  these  cases,  therefore,  it  will  also  be  important 
to  prove  the  difference  of  price  at  the  times  of  the  making  and 
of  the  breach  of  the  contract,  in  order  to  ascertain  the  damages 
which  the  plaintiff"  h.is  sustained.* 

The  case  of  Peeram  v.  Palmer,  reported  at  length  in  Gilb.  Z.  Pceram  •«. 
£.  194,  and  not  noticed,  as  far  as  I  can  find,  in  any  other  book,  jj  ^^jg^ ' 
contains  an  important  decision  as  to  the  effect  of  a  dispensation, 
by  one  party  with  an  exact  performance  by  the  other,  in  contracts 
of  this  nature.  The  plaintiff'  bought  of  the  defendant  100  quarters 
of  barley,  to  be  delivered  to  the  plaintiff' at  HodJes'lon,  between 
harvest  and  Candlemas,  at  the  rate  of  16s.  per  quarter,  to  be  paid 
at  the  times  of  delivery,  according  to  the  quantity  delivered  at 


*  It  musi  here  be  r  collt-cted,  that  I  have  taken  tlie  cases  of  mh  agreement  v/here 
the  purchase  is  to  be  completed,  and  tlie  moni  y  paid  at  the  same  time  ;  and  there- 
fore, before  this  is  applied  to  any  particular  case,  it  must  be  well  considered,  whe- 
ther, by  the  terms  of  the  cot. trad,  thi-  act  of  one  party  is  a  condition  piecedeut  to 
the  act  of  thi-  nther,  or  whetii-  r  ll  ey  ai  e  indt  pendi  nl.  "  Whethei  one  promise  be 
the  consideration  of  another,  or  wh^tht  r  thf  perf or munce ,  »r\i\  not  ihe  niei-.  promise 
be  the  consideration,  must  (as  was  oliserved  by  Mi .  J  Lawrksck,  in  Glqzebrook  v. 
Woodrotu,  8  T.  Rej).  373,)  be  gathered  from  and  liepen'i  eiiii[f-l\  upon  the  words 
and  nature  of  the  agreemeni  ;"  liut,  (as  was  obsei  ved  by  Mr.  J  Lk  Buanch  in  the 
same  case,)  "  No  person  shall  call  upon  anoilnr  to  perform  his  pari  of  a  contract 
until  he  himselt  has  performed  all  >\\<X.  he  has  stipulated  to  do  as  the  cunsideratiin 
of  the  other's  promise.  This  applu-s  to  every  case  of  a  sale  oV  propi  rty,  wh'iv  one 
engages  to  convey  on  a  certain  lUiy,  -ind  the  other  to  pay  at  the  same  time ;  and  this 
whither  the  one  be  slated  in  ttrms  to  be  m  consideration  of  the  other  or  not.  In 
neither  case  will  ihe  Court  compel  on^  part>'  to  perform  his  part  until  ih  oilier  has 
done,  t  r  has  offered  to  do  his  own."  For  the  many  nice  distinctions  which  have  b  en 
taken  in  these  cases,  see  fVilliams's  Smindem,  320,  note  (4)  where  all  the  cas.  s  as 
to  this  point  are  collected,  except  those  b'fore  nientioned  of  Gluzebrouk  v.  IVood- 
row,  and  Rawson  v  Johnson,  1  East's  Rep.  203,  which  have  been  deterniineil  since 
the  publication  of  that  note.  In  th  last  case  the  Court  said,  that  when  the  seller 
absolutely  lefused  to  deliver  the  goods  sold,  there  was  no  necessity  for  the  purchaser 
to  make  a  formal  tend-r  of  thy  money  .f 

f  .^  in  consideration  of  th*"  covenants  of  B  in  the  same  deed,  covenants  that 
he  will  purchase  certain  lands  of  B-  then  in  possession  of  ^.  and  will  pay  for  the 
same  a  certain  sum  in  four  years,  with  interest  annually  ;  and  B.  covenants  that  he 
will  deliver  to  Jl.  a  conveyance  ol  the  land,  upon  his  paying  the  said  sums  at  the 
time. or  times  ra.  ntioned.  It  was  liolden,  that  B.  might  recover  the  interest  at  the 
end  of  the  three  fi  st  years  by  way  of  n  m  ;  but  that  he  conid  not  recover  the  fourth 
yeai 's  inieiHSt,  uor  the  iiriiicipal  sum,  without  making  a  tender  of  the  conveyance. 
ilarUiner  v.  Corson,  15  Jluss.  Rep,  500. — Am.  Ed. 


A<'iioii  Wy 
vendee. 


Campb.  iJZ. 


3g()  ASSUMPSIT. 

Part  IT.  each  time.  The  defendant,  on  the  day  but  one  before  Candlemat, 
delivered  to  the  plaintiff's  use,  at  the  place  appointed,  a  quan- 
tity of  barley,  which  was  sent  for  twenty  quarters,  but  when  the 
same  was  measured,  it  was  found  to  be  but  nineteen  quarters 
and  a  half.  The  barley  being  short  of  measure,  the  plaintift* 
paid  to  the  defendant's  servant  lOl.  and  no  more,  though  he  had 
enough  by  him  in  the  house  to  have  paid  for  the  whole  100  quar- 
ters, and  before  he  brought  the  action  he  paid  the  other  61.  to  the 
defendant.  The  case,  having  been  reserved  for  the  opinion  of 
Lord  C.  J.  Parker,  appears  to  have  been  argued  at  considerable 
length,  and  the  principal  point  which  was  made  in  argument 
was,  that  these  were  mutual  and  independent  promises.  On  this 
point,  however,  no  opinion  appears  to  have'been  given  :  but  the 
Chief  Justice  held,  that  the  defendant,  having  delivered  nine- 
teen quarters  and  a  half  without  ready  money,  had  dispensed 
with  the  condition  as  to  that  quantity,  though  he  might  have 
chosen  whether  he  would  have  delivered  it  until  he  was  paid, 
and  then  there  was  no  reason  but  that  he  should  not  go  on  with 
Payne  V,  the  delivery  of  the  residue  according  to  his  contract. (a)  But, 
Shadbolt,  where,  in  an  action  for  the  not  delivering  of  wood,  it  appeared 
that  the  wood  had  been  sold  to  be  paid  for  on  delivery  by  a  bill 
at  two  months  ;  and  that  the  defendant  had  permitted  the  plain- 
tift" to  carry  part  away  without  receiving  any  bill  ;  Lord  Ellen- 
borough  held,  that  this  was  only  a  dispensation  pro  tanto,  and 
that  the  vendor  was  at  any  time  entitled  to  stand  on  his  rights 
as  they  were  originally  established  by  the  contract  of  sale. (6) 


Action  on  a  warranty. 

Onawar-  In  an  action  on  a  warranty,  the  plaintiff  must  prove  the  sale 
'^"  ^'  and  warranty.  In  general  any  representation  made  by  the  de- 
fendant of  the  state  of  the  thing  sold,  at  the  time  of  the  sale,  will 
amount  in  law  to  a  warranty  ;  but  wliere  the  defendant  refers 
to  any  document,  or  to  his  belief  only,  in  such  case  no  action  is 
maintainable,  without  proof  that  he  knew  he  was  representing  a 


(a)  Green  v.  Reynolds,  2  Johns.  Rfp.  207.  West  v.  Emmons,  5  Do.  179.  Jfliller 
V.  Drake,  I  Ciiines''  Jie/i.  45.  oeers  v.  Fowler,  2  Johns.  Rep.  272. — Am.  Ed. 

(b)  Where  goods  are  sold  t"  be  p:iid  for  on  delivery,  if,  on  the  delivery  being 
completed,  the  vf  ndee  refuses  lo  (lay  for  tliem,  the  vendor  has  a  lien  for  the  price, 
ami  may  resume  the  possession  of  the  goods.  Palmer  v.  Haiul,  13  Johns.  Rep.  434, 
— Am.  Ed. 


WRITTEN  CONTRACTS.  3g£ 

iaisehood.(c)     Thus,  where  a  man  sold  a  horse,  which  he  stated  Ch.  II.  s.  i. 

to  be  of  a  certain  age,  according  to  a  pedigree  delivered  to  him  '^^'^^"g'^^ 

when  he  purchased  the  horse,  and  shewed  the  pedigree  to  the  __^_^ 


Sale  of  Chattels  and  Warranty. 

(c)  In  Connecticut,  an  action  will  lie  for  a  fraud  in  the  sale  of  an  order  drawn  by 
the  Select  men  on  the  Town  Treasurer.  Bacon  v.  Sandford,  1  tloofs  Rep.  164. 

The  seller  of  a  public  security,  runs  the  risk  of  its  being  true  and  genuine,  espe- 
cially if  he  affirm  it  to  be  such.   Turner  v.  Tuttle,ibid.  350. 

The  law  raises  an  implied  warranty,  that  the  thing  sold  is  what  it  is  held  out  to 
be,  and  if  it  be  not,  the  seller  must  make  good  the  damage,  whether  he  knew  of 
any  defect  or  not.  Bailey  v.  JVickols,  2  Root's  Rep.  407. 

In  JVeiv  York,  it  has  been  decided,  that  in  an  action  on  the  case  for  selling  one 
article  tor  another,  there  must  be  either  ■wanmniy  or  fraud;  a  sound  price  does  not 
imply  a  warranty  of  soundness.  Seixasy.  Woods,'!  Caines''  Rep.  48.  Snell  et  al.  v. 
JW/ses  et  al  1  Johns  Rep.  96.  PeiTy  v  Aaron,  1  Johns.  Rep.  129.  Defreeze  v, 
Trumper,  ibid  274.  Holden  v.  Daken,  4  Do.  421. 

On  a  written  warranty  that  a  negro  is  sound,  parol  proof  is  admissible  to  shew  that 
at  the  time  of  sale,  the  vendor  informed  the  vendee  of  the  defect  and  a  warranty 
does  not  extend  to  visible  d -fecis.   Schuyler  v    Russ,  2  Caines'  Rep.  202. 

In  an  action  of  assumpsit  on  the  sale  of  goods  for  not  delivering  goods  of  a  certain 
description,  but  of  a  difft^rent  sort  and  quality,  either  an  express  warranty  or  fraud 
must  be  alleged,  and  the  plaintiff  must  prove  the  allegations  precisely  as  they  are 
laid.  Snell  etal.  \.J\losesetal.  1  Johns.  Rep.  96. 

S"  in  an  action  o{ assumpsit  for  a  fraud  in  the  sale  of  cotton,  it  was  held  that  the 
declaration  should  contain  either  an  express  warranty  or  an  allegation  that  the  ven- 
dor knew  of  the  bad  quality  at  the  time  he  sold  it  as  merchantable.  Perry  v.  Aaron, 
ibid.  128. 

In  every  sale  of  a  personal  chattel,  there  is  an  implied  w  irranty  in  respect  to  the 
title  of  the  vendor  ;  aliter  as  to  the  quality  or  soimdni'ss  of  the  thing  sold.  Defreeze 
V.  Trumpfr,ibid.  274.  Ileermance  v.  Vernoy,6  Johns.  Rep.  5.  Chiserv.  Woody 
Bard.  Rt-p   552. 

Thi'  English  rule  of  law  as  lo  sales  in  market  overt,  is  not  applicable  to  this  State 
(JVew  York)  where  no  such  institution  or  usage  exists.  Wheeliaright  v.  Depeyster, 
1  Johns.  Rep.  471.  So  in  Pennsylvunia.  Hosack  v.  Weaver,  1  Yeates'  Rrp.  478/ 
Bardy  v.  Jlletzg-er,  2  Do.  347.  Easton  v.  Worthington,  5  Serg.  SJ  R.  Rep.  130. 

Yet  in  another  case  it  was  ruled  on  a  sale,  in  good  faiih  anl  without  warranty, 
the  buyer  of  a  personal  chattel  takes,  the  risk.  Dorlativ.  Sammis,  2  Johns.  Rep. 
m,  {n). 

The  defendant  sold  to  the  plaintiff  paints  for  good  Spariish-brown  and  White-lead, 
and  for  a  full  price ;  the  paints  proved  to  be  bad  and  of  no  value,  it  was  held  to 
make  the  defendant  liable,  there  must  be  either  an  express  warranty  or  traud> 
Holden  v.  Dukeii,  4  Johns.  Rep.  421. 

If  on  a  sale  of  good?,  the  vendor  takes  the  notes  of  a  third  person,  payable  at  a 
future  day  in  payment,  at  his  own  risk,  and  where  there  is  a  fraudulent  representa- 
tion  on  the  part  of  thi-  vendee  as  to  the  note,  the  vendor  may  bring  his  action 
against  the  vendee  immediately  for  goods  sold  and  delivered,  WiUson  v .  Foree ,  6  Do. 
110. 

II  a  contract  be  void  on  the  ground  of  fraud,  the  party  may  waive  it,  and  bring  ai> 
^v.U<^u  iii  assumpsit,  ibid.  Kimball  w.  Cunning-ham,  i  Mass.  Rep.  502. 

A-^aumpsit  is  the  proper  form  of  action  where  there  is  a  warranty  express  or  im- 
plied in  the  sale  of  chattels ;  but  where  the  plainliff  grounds  his  actioti  on  deceit,  or 


382  ASSUMPSIT 

Part  II.     buyer,Cl)  Lord  Kenyon  held,  that  no  action  could  be  maintain- 

Actinn  by     gj  agalnst  him,  without  proving  that  he  knew  the  pedigree  to  be 

^_^______  false:  and  in  like  manner,  a  representation  that  a  picture  is  the 


(i;  DMiiiop 

V.  W  "'gh, 


II 


Peak-  's  N.       fraud  in  the  sale  and  not  in  a  breach  of  contnici,  the  dec^-it  or  hvud  must  bf  sub- 
P.  (jas,  123.    siiiiiiivfcl}'  alleged  in  the  d  claration,  olh<'iwise   uo  prool  of  fraud   is  admissible. 
Erertnon^n  exrs.  v.  Miles,  6  Johns   Rtp.  138. 

Ill  Pennxylvania ,  tht-  poss^.  ssion  of  chattels  is  a  strong  in'lucement  to  bi-lieve  the 
possessor  is  thi-  owntr,  and  the  act  of  selling  ihetn  is  sQch  an  .iffirniation  of  property, 
that  on  th:ft  circumstance  alone,  il  the  fwct  should  turn  oul  otherwise,  ihe  value  can 
be  recovered  trom  thf  s-  Ut-r    Boyd  v    Bopat.  2  Dall.  Rep   91. 

Where  the  plMituiff  exchanged  a  horse  with  iht  defr-ndant,  and  the  latter  pos- 
sessed no  title,  the  plaintiff  may  recover  the  value  of  his  horse  in  ■-.n  acli'm  of  as- 
sumpsit tor  monev  had  and  received.  Hooh  v.  Rvbinon,  Aldii.  Rep.  271. 

It' the  vendor  of  a  chattel  keow  of  a  ii^at  rial  defect,  ui. known  to  the  vendee,  who 
cannot  with  common  jirudence  jierceive  it,  it  is  such  a  fraud  as  will  vitiate  the  con- 
tract, and  the  vencli  e  iii;iy  call  for  his  money  again.  Dixon  v.  JlPChitchey,  ibid. 
322.  Vide  /t-wi?i  y.  Rankin,  ibid.  1  i6. 

In  J\'orth  Cavulina,  the  vi\\e  of  cuveflt  emptor  applies  where  a  man  purchases  a 
chatie],  not  i?i  the  p'/ssession  of  the  vendor.   Galbraith  v.  Whijte.  I  Hayio.  Rep.  464. 

So  where  the  thing  sold  has  some  visible  quality  which  lessens  its  value,  ibid. 

If  a  man  sell  ai>  unsound  Uov^e ,  whose  disorder  is  not  known  and  recei»es  the 
full  value  as  for  a  sound  horse,  ,m  action  of  assumpsit  lies  against  the  vendor,  with- 
out an  ex[)ress  wai  ranly.  ibid. 

An  action  will  lie  lor  itecritfully  asserting  that  an  unsound  mare  is  sound,  with  a 
frandnleni  view,  it'ihe  plaintifFbe  injuied.  Inviu  v.  Shenil,  Tayl.Rep.  1.  Kimmel 
V.  Lichty,  3  Yeatfs''  Rep   2§2. 

A  full  price,  implies  a  warranty.  Toris  v.  T.ong,  Tayl.  Rep.  17  Sed  \lde  Rivers 
V.  Griiget,  2  JKhtt  &  .1/'  Cord's  Rep.  265.  Rose  ei  al.  v.  Beatie,  ibid.  538. 

In  an  ad  ion  on  an  implied  warranty,  tlie  plaintiff  need  not  prove  the  return  of  the 
thing  bought,  ibid. 

But  if  the  action  were  for  the  price  of  the  chattel,  such  a  return  must  be  proved. 
ibid. 

In  So2ith  Carolina,  in  the  sale  of  a  negro,  a  sound  price  warrants  against  all  faults 
and  defects,  kno-am  or  unhuoivn  to  the  seller.  Timrod  v.  Shoolbred,  1  Bay''s  Rep. 
324.  Vide  Roiiple  v.  JM'.Carty,  ibid.  480,  on  the  same  point. 

A  sound  price  destrves  a  sound  co  nmodity,  whether  known  or  unknown  to  the 
buyer.  The  State  v.  Gaillurd,  2  Bay''s  Rep.  11.  jMissroon  et  al.  v,  Waldo  et  al.  2 
J\ott  &  .M  Curd's  Rep.  76. 

In  this  case,  it  was  heM  ihat  a  sownJ  price  warrants  a  soJ/Mf/  cornmodity,  but 
where  a  buyer  is  informed  fully  of  all  the  circumstances,  and  has  a  fair  opportunity 
of  informing  himselt  of  them,  he  shall  be  bound  and  held  to  his  bargain,  though  it 
be  a  losing  one.    Whitefifldw  M-Leod,  2  Bay's  Rep.  380. 

Mere  inadequacy  of  consideration,  where  there  is  no  fraud,  is  not  a  sufficient 
ground  for  si  ttiug  aside  a  contract,  ibid. 

In  Kentucl^y,  a  vendor  of  a  horse  is  answerable  for  a  representation,  which  is 
false,  whether  it  were  the  i  ffect  of  fraud  or  mistake.  Baldwin  v.  West,  Hardin's 
Rep.  50.  («) 

Yet  in  another  case,  in  a  suit  for  a  deceit,  it  was  ruled  in  selling  an  unsound  horse, 
the  declaration  should  aver  either  that  the  vendor  falsely  and  fraudulently  repre- 
sented the  horse  sound,  or  that  he  knew  him  to  be  unsound.  Baldwin  v.  West, 
ibid.  50, 

In  JWrp  Orleans,  if  a  slave  have  at  the  time  of  the  sale,  the  seeds  of  a  disease,  of 


WRITTEN  CONTRACTS.  ggg 

production  of  an  ancient  master,  long  since  deceased,  does  not  Ch  ir.  s.  i. 
bind  tlie  party  to  a  warranty  that  it  is  so  ;  but  is  only  a  repre-     ^fjjj"j'^ 

sentation  of  the  fact,  according  to  the  best  of  his  belief;  and 

therefore  no  action  can  be  mainiained,  unless  it  be  proved  that 
the  defendant  in  this  case  also  knew,  or  had  reason  to  believe, 
that  he  was  representing  a  frilsehood.(l)     In  these  cases  there  [,'^g|^''^J^'''J^"« 
was  no  breach  of  that  good  faith  which  the  law  expects  in  all  «.  Siuingsut 
contracts  between  man  and  man  ;   but  where  a  person  knowing  ip' x'^sr*^^*^ 
of  defects  in  a  ship,  which  it  was  impossible  for  the  buyi-r  to  dis-  Cao.  3,  \i.  s. 
cover,  did  not  disclose  them  to  him  at  the  time  of  sale,  Lord  y^Q    ''*'      ' 
Kenyon  held  that  he  was  liable  to  an  action, (2)  as  on  a  warranty 

r         r  111.  J  ijjr.         1    (2)MeIlish 

that  the  ship  was  free  from  all  latent  and  concealed  detects,  al-^,.  m  .iteaux 
though,  by  the  express  terms  of  the  contract,  the  buyer  was  to  J^ J**"^'*  Gas. 
take  her  with  all  faults.     In  subsequent  cases, (3)  however,  this 
decision  has  been  overruled,  and  it  has  been  holden,  that  the  (■^\^^s'ehole 

V.  Waters, 

seller  is  not  answerable  unless  he  has  taken  some  means  to  con-.5Campb  154. 
ceal  the  defects.  ^^:!^^ 

When  the  unsoundness  is  proved,  it  is  proper  to  shew  an  ap-4Tanm.  779. 
plication  to  the  vendor  to  take  back  the  thing  sold,  and  return^'  y).'j,'^  3 
"  the  money,  otherwise  the  plaintiff  will  not  be  entitled  to  recover  t^ampb  506. 
for  the  keep  ;(4)  but  this  is  not  necessary  to  maintain  the  action,  mj  Casweil 
for  the  buyer  may  a^irm  the  contract,  and  sue  for  damages  oc-^'-  Co^iv, 
casioned  by  the  breach  of  it,  so  that  where  the  buyer  of  an  un- 
sound horse  kept  him(5)  and  endeavoured  to  sell  him,  it  was  (^)  ^l'''*''' ^• 
held  tiiat  the  action  on  the  warranty  was  still   maintainable.        i H. Bia'ck.i7. 

If  the  buyer  had  the  liberty  of  returning  the  thing  bought,  in 
case  he  disliked  it,  within  a  certain  time,  and  did  so.  accor- ^°J?'^''^ 
dingly  ;  or  if  the'  defendant,  on  the  horse  being  discovered  to  be  i  T.  Rep.  133. 
unsound,  consented  to  accept  him  back,  and  he  was  returned  ; 
the  proof  of  these  circumstances  gives  the  plaintiff  a  right  to  re- 
cover back  the  wh(»le  money,  as  money  had  and  received  to  his 
use.     But  the  mere  circumstance  of  the  vendor,  who  had  sold  a|^^^"f  ^'• 

■  Whale, 
'■ 7  East,  274. 

which  he  afterwarrls  dies,  the  vendor  shall  restore  the  price  of  the  slave.  Derwees  v. 
Morgan,  Muvtiti's  Orl.  T.  R.  \. 

But  in  a  coniract  for  the  sale  of  goods,  without  warranty  of  Iht-  quality,  if  there 
be  no  fiauil  on  the  part  of  the  sell'-r,  he  is  not  answerable  for  the  quality.  Willing 
et  al.  V.  Consequu   1  Peters^  Rep.  317. 

In  an  aciion  for  the  price  of  goods  st'ld,  the  defendant  may  avail  himself  by  way 
of  set-6fr,  of  a  breai-h  of  wairantv  of  the  goods,  without  returning  the  articles,  or 
giving  the  vendor  notice  to  take  them  away.  Steigleman  v.  JcJ^ries,  I  '^erg.  ii 
R.  Rtp.  477.  '■ 

An  assertion  by  the  vendor  to  the  vendee,  at  the  time  of  selling  a  mare,  that  he 
i.i  sure  she  is  safe,  and  kind,  and  gentle  in  harness,  amounts  merely  to  a  representa- 
tion, and  does  not  constitute  a  warranty  or  express  promise  that  she  is  so.  Jackson 
V,  fVetheHll,  7  Do.  480.— Am.  Ed. 


381  ASSUMPSIT. 

Action  by    liorse  as  a  sound  one,  saying,  in  a  subsequent  conversation  with 
Par"  iT      *^^  buyer,  that  if  the  horse  were  unsound  he  would  take  it  again 

and  return  the  money,  (he  at  the  same  time  insisting  that  the 

horse  was  sou"d,}  will  not  enable  the  buyer  to  recover  in  an  ac- 
tion for  money  had  and  received,  because  the  original  contract 
still  remains  open,  and  the  breach  of  that  contract  the  only  cause 
of  action. 


Of  the  evidence  in  actions  between  the  vendor  wid  vendee  of  stock, 
or  by  the  lender  against  the  borrower  thereof. 

Vendor  of  The  great  quantity  of  property  which  is  invested  in  the  pub- 

lic funds  has  of  late  years  given  rise  to  a  species  of  action  un- 
known in  earlier  times,  viz.  that  on  a  contract  either  to  transfer 
or  to  replace  stock  at  some  future  day  ;  and  as  these  contracts 
are  most  commonly  reduced  into  writing  they  will  properly  form 
a  part  of  this  section. 
Vide  Stat.  When  an  action   is  brought  by  the  seller  against  the  pur- 

'  ^^°"  ^'  ^'  ^'  chaser  for  not  accepting  stock,  the  first  fact  to  be  proved  is, 
that  the  plaintiff*  was  actually  possessed  of  stock  to  the  amount 
for  which  he  contracted.*  He  must  then  prove  the  contract, 
and  next,  either  that  he  made  an  actual  transfer  of  the  stock, 
or  else  that  he  attended  at  the  Bank  for  the  purpose  of  trans- 
ferring it,  till  the  books  shut,  on  the  day  whereon  it  was  to 
be  transferred.  In  the  latter  case  he  must  also  prove,  that  he 
afterwards  sold  and  actually  transferred  the  stock  to  some  third 

(1)  Borde-  person,  which  should  be  done  as  soon  as  possible. (1)  In  a  late 
eory^5East^  case,(2)  which  arose  on  this  subject,  the  Judges  of  the  Court  of 
lor.  Hecks-  King's  Bench  expressed  considerable  doubt,  whether  the  trans- 
^ry^4East,"  f^^*  to  the  third  person  should  not  be  made  at  the  next  transfer 
607.  day  after  the  contract  was  broken  ;  but  the  majority  of  the  Court 

(2)  Borde-  inclined  to  think  that  it  was  sufficient  if  made  within  a  reason- 
naTe«.Gre-  ^\j\^  distance  of  time  afterwards,  and  that  in  case  the  stock  had 

gory,  ubi  sup  ....  ,.  .  ,\        a    r      a       i. 

borne  a  higher  price  in  the  intermediate  time,  the  deienaant 
should  have  the  benefit  of  that  circumstance  by  making  that 
higher  price  the  measure  of  the  damages. 


•  This  fact,  and  all  others  which  have  reference  to  the  books  of  the  Bank,  must 
be  proved  by  examined  copies  frora  the  Bank  books  (vide  ante,  80,  and  JMarsh  v. 
Cohiet,  2  Esp^  665,)  to  nbiain  which  a  stibpcena  duces  tecum  should  be  served  on  one 
ot  the  clerks  at  ihe  office  where  tlve  books  are  kept,  and  application  made  to  the 
Bank  solicitor,  who  will  re()resent  10  the  Bank  the  propriety  of  the  clerk's  attend- 
ing with  a  copy  from  the  book. 


PAROL  CONTRACTS.  ggg 

In  case  the  action  is  brought  by  the  purchaser,  he  also  must  ch.n.  s.  i. 
prove  that  the  seller  was  possessed  of  the  stock  at  the  time  of   Vendor  of 

the  contract ;  that  he  tendered  the  money  and  requested  a  trans- ^^_^ 

fer,  which  the  other  refused;((i)  or  that  he  attended  at  the  Bank  vj,|^  c«ionei 
to  accept  the  transfer,  and  was  prepared  with  money  to  pay  for^-  R'"'sgs, 
it,  which  could  be   inferred   from  a  demand  and  refusal  ;(1)  and  ji'.e  above 
lastly,  that  he  actually  bought  and  duly  accepted  the  same  quan-**^^^^- 
tity  of  stock  of  another  person  at  a  greater  price.  (i)  vide 

In  the  second  kind  of  action,  viz.  that  for  not  replacing  '^^^^^t^^'^^son 
the  plaintift'must  tirst  prove  that  being  possessed  of  the  stock  in  ante,  239,  7 
question,  he  sold  it  out  at  the  timfj mentioned  in  the  declaration,    ^'°"*'»*'*  »  ■ 
and  advanced  the  produce  to  the  defendant,  on  his  promise  to 
replace  it.    He  must  then  prove,  by  some  per?on  conversant 
with  the  funds,  the  current  price  of  stock  at  the  day  on  which  it 
ought  to  have  been  replaced;  and  if  it  has  risen  since  that  time, 
and  there  has  been  no  offer  on  the  part  of  the  defendant  to  re- 
place it,  he  should  also  prove  the  price  it  has  since  borne  ;  for, 
as  the  ccyitract  was  specifically  to  replace  the  stock,  and  the 
plaintiff"  might,  in  case  the  contract  had  not  been  broken,  have 
sold  out  the  stock  at  any  time  afterwards,  he  is,  according  to  one 
case, (2)  entitled  to  receive  in  damages  the  highest  price  at  which  (2)  Shepherd 
he  might  have  sold  it,  had  the  defendant  performed  his  contract.  2  East,  211'. 
But  in  another  case, (3)  where  it  appeared  from  the  plaintiff's 

111  1  •  1"!     V   /        ArinciT 

letters,  that  he  wanted  a  re-payment  m  money  and  not  in  stock,  v.  Lord  Sca- 
the Court  held  that  he  could  only  recover  the  price  at  the  day '.^"^^•''^^*""'* 
when  it  ought  to  be  replaced,  or  at  the  day  of  the  day  of  trial, 
(at  his  option)  without  considering  whether  any  higher  price 
might  have  been  obtained  at  any  intermediate  day. 


SECTION  11. 

Of  the  evidence  on  parol  and  implied  promises. 

The  several  instances  which  have  been  noticed  were  cases  of  Goods  sold 
actual  dii\A  express  promises;  but  the  far  greater  number  of  ac-^"^  aeivere 
tions  of  assumpsit  are  founded  on  promises  impliedhy  operation 
of  law.  This  implication  may  arise  either  from  the  common 
and  universal  practice  of  mankind,  or  the  usage  of  particular 
trades.  If  I  order  goods  of  a  man,  or  employ  him  to  do  work, 
and  no  mention  is  made  of  the  sum  which  is  to*  be  paid,  the  law 

{(l)  A  contract  for  tht  delivery  of  •<  certain  amount  ot  6  ptr  cent  stoi<  :il  a  future 
period,  for  a  certain  price,  is  lawful,  and  tlie  vendoi-  is  not  bound  to  mtikc  thi  irausfer 
vlihout  receiving  the  money,  GUchreest  v,  Pollock,  2  Yeatest*  R»p^  18.— Am.  Ed, 

3D 


386  ASSUMPSIT. 

Paitil.  implies  a  promise  to  pay  the  value  of  the  goods,  or  as  much  as 
rneru"it!^  he  deserves  for  the  work  :  and  in  an  action  for  it,  the  plaintiff 
must  prove  the  delivery  of  the  goods,  or  performance  of  the  work 


(1 ) Upsdei t).  and  the  usual  prices  charged  for  them:  but  it  must  appear  that 

r  "'"i^Q'T^'^''  these  usual  prices  are  also  a   reasonable  compensation  for  the 
charges  of  5l.  per  cent,  by  a  surveyor  ?(1)  or  7h,l.  per  cent,  by  an 

^^j|,.jg[jg  j^^*auctioneer(2)  on  a  large  building  or  sale;  though  proved  to  be 

Esp.  Cas.  340.  Mst^a/,  have  not  been  allowed. 

t   M  e  i)osi.      1^  ^jij  j^g  pj-oper  here  to  observe,  that  the  question  of  value 

can  never  arise  where  a  certain  sum  is  agreed  upon,  unless  it  be 

apparent  that  a  gross  fraud  h^*been  committed,  as  was  the  case 

where  a  man  agreed  to  give  a  farthing  a  nail  for  a  horse,  doub- 

(3)  Vide  1       ling  it  each  time, (3)  which  would  have  amounted  to  an  immense 

BuL  N  p      sum  of  money,  and  such  as  no  man,  who  could  have  calculated 

156.  the  amount,  would  have  agreed  to  give.     But  where  a  certain 

sum  of -money  has  been  agreed  to  be  given  for  any  work  of  art 
(a  portrait  for  instance)  which  is  not  properly  executed,  the  de- 

•a.  Whi'tef 4 '  fendant  should  return  it,  and  will  not  be  permitted  to^retain  it> 

Esp.  Cas.  95.  and  enter  into  the  comparative  value. (4) 

Delivery  lo  a       \^  order  to  shew  a  delivery  of  goods,  the  plaintiff  must  either 

earner  or  ,  ii-iiiz-i^i 

other  agent,    prove  that  they  were  delivered  at  the  detendant's  house,  or  to 

some  person  authorised  by  him  to  receive  them  ;(e)  as  if  he  name 

a  particular  carrier,  or  desire  them  to  be  sent  by  land  carriage, 

and  there  is  but  one  carrier  to  the  place  where  he  resides ;  the 

delivery  to  the  carrier  is  a  complete  delivery  to  the  purchaser, 

(o)  Veale  v.   ^^^  |^g  jg  answerable  for  them  whether  they  ever  arrive  or  not.fa) 

294.  Bill.  N    From  these  cases  it  would  seem,  that  unless  the  purchaser  point 

r.  Wood^Yb"^"*  ^  particular  mode  of  conveyance,  the  seller  sends  them 

(e)  Oil  a  cnntraet  for  thf  sale  of  goods,  the  right  of  the  vendor  is  divested  imme- 
diately after  the  contract  of  sale  is  made  in  favour  of  the  vendee,  unless  it  be  other- 
wise  agreed,-  and  even  then  the  vendor  may,  hy  his  contract,  renounce  the  benefit 
of  the  conditions  stipulated.  Leedom  et  al.  v.  P/iilips,  1  Yeates'  Rep.  527. 

If  tlie  vendor  relies  on  the  promise  of  the  vendee  to  perform  the  conditions  of 
salt-,  and  deliver  the  goods  accordingly,  the  right  of  property  is  changed,  although 
the  conditinns  be  not  performed.  Bui  where  performance  and  delivery  are  under- 
stood by  the  pwrties  to  be  simuliaiipous,  possession  obt«ined  by  artifice  and  deceit, 
will  not  change  the  property.  Harris  v.  Smith,  3  Serg.  &  R.  Rep.  20. 

On  a  contrHCt  for  the  sale  of  gooils,  the  vendor,  if  the  goods  are  bulky,  must  give 
notice  to  the  bu)  er  that  he  is  ready  to  deliver  them,  and  on  the  vendee  failing  to  lake 
thtm  away,  the  vndor  may,  on  due  notice,  sell  them  at  public  auction,  and  charge 
the  vendee  with  the  difTrence  of  price.   Girardv.  Taggart,  5  Serg.  &  R.  Rep.  19, 

A  delivery  of  the  key  of  the  warehouse  in  which  goods  sold  are  deposited,  is  a 
sufficient  lielivery  of  the  goofis  to  transfer  the  property.  Wilkes  v.  Ferris,  5  Johns. 
Rep.  335.  Et  vide  Je^ett  v.  Warren,  12  Mass.  Re/j.  300. 

The  property  in  a  vessel  passes  by  delivery  only,  without  a  bill  of  sale.  Wendt' 
ver  et  al.  v.  Hogeboom  et  al.  7  Johns.  Rep.  308.  Sed  vide  Woods  v.  Courier  etaL 
1  Ball.  Rep.  141.— Am  Ed. 


PAROL  CONTRACTS.  ggy 

at  his  own  risk,  and   that  before  he  can  charo;e  the  purchaser  ch.  II.  s.  2. 
with  the  value  of  them,  he  must  prove  not  only  the  delivery  of  ^^^"ntraci  by 

siSiTtnt.  wife 

them  to  the  carrier,  but  also  call  some  servant  of  the  carrier  to         &c.     ' 
prove  that  he  delivered  them  to  the  defendant//)     But  in  a  late 


case.d)  the  Court  of  Common  Pleas  held,  that  delivery  of  the(»)  F)ntt»ii  ■». 
goods  by  the  vendor  to  a  carrier,  not  named  by  the  venJee  to  be  ^"r^j  gj'^pjl 
taken  to  him,  was  a  delivery  to  the  vendee,  and  he  was  charge- ■''Si^. 
able.     Lord  Alvanley,  delivering  the  opinion  of  the  Court,  said, 
"  it  appeared  to  him  to  be  a  proposition  as  well  settled  as  any 
in  the  law,  that  if  a  tradesman  order  goods  to  be  sent  by  a  car- 
rier, though  he  does  not  name  any  particular  carrier,  the  mo- 
ment the  goods  are  delivered  to  the  carrier,  it  operates  as  a  de- 
livery to  the  purchaser ;  the  whole  property  immediately  vests 
in  him  ;  he  alone  can  bring  an  action  for  any  injury  done  to  the 
goods;  and  if  any  accident  happen  to  the  goods,  it  is  at  his  risk." 
The  same  doctrine  is  laid  down  in  a  former  case  at  Nisi  Prius;{9.)  (2)  Viile  3  P. 
we  may  therefore  consider  it  to  be  now  settled,  that  by  a  gene-  Wiii.  i86; 
ral  order  to  send  the  goods  by  a  carrier,  the  vendee  adopts  as  his  m  redith,  2 
agent  any  carrier  who  may  be  appointed  by  the  vendor.*  p**"''''  ^^?'  a 

Proof  of  the  delivery  of  meat,  or  other  things  commonly  used  'ow,  2  N. 
in  a  family,  at  a  man's  house,  is  prima  facie  evidence  that  he  or-  ^®P-^  ^• 
dered  them  on  credit,  and  the  law  implies  a  promise  to  pay  the 
value;  which  being  proved,  the  plaintift'is  entitled  to  a  verdict 
for  so  much.     If  it  be  proved  that  the  defendant's  wife,  or  his 
servant,  ordered  them,  the  case  is  carried  a  step  further,  and 
the  presumption  is  stronger,  that  they  had  his  authority  so  to 
do;(3)  and  if  it  be  also  proved,  that  he  has  been  accustomed  to  (3)  ]vfa„by  r. 
pay  for  goods  so  ordered,  it  is  conclusive  against  him,  and  nothing;  ^''"^  ^  *^"i* 


L.  E.  183. 


(/ )  If  a  person  sends  an  or<ler  to  a  mcrcliant  to  send  him  a  quantity  of  goods  on 
certain  terms  of  ccedit,  and  the  merchant  sends  a  less  quantity,  on  a  shorter  cri-dit ; 
and  the  goods  sent  are  lost  by  the  way  ;  the  vendee  must  bear  the  loss,  for  there  is 
no  contract  express  or  implied  between  the  parties.  Bruce  et  al.  v.  Pearson,  3 
Johns  Rep.  526. 

A  promise  made  upon  terms  to  which  the  other  parly  does  not  accede,  ceases  to 
bebmding.  Tuttle  v.  Love, 7  Johns.  Rep.  4r0. — Am.  Ed. 

•  In  Anderson  V .  Hodgso7i,5  Prvre,  650,  the  Coui-t  of  Exchequer  held,  that  an 
order  by  ih»-  defendant  to  send  goods  to  a  <'eiiain  quay,  to  be  left  there  till  culled 
for,  without  shewing  an  acceptance  of  the  goods  by  the  vendt-e  after  their  arrival  at 
the  quay, did  not  support  an  action  for  goods  sold  and  delivered,  where  the  goods 
had  been  delivered  at  another  quav  foi-  the  purpose  of  being  forwarded  by  a  vessel 
passing  he«ween  the  two,  ilihough  they  had  afterwai^s  arrived  at  th- quay  narai*d 
by  the  vendee;  and  C^iiKow  15  oliserved,  that  "if  Lord  Alvani.ev  coulil  be  sup- 
{>GSed  to  have  determined  that  a  delivery  generally  to  a  comaion  en  ei'-r,  would 
have  been  sufficient  to  sustain  the  action,  hv  ihould  dissent  from  that  opinion." 


388  ASSUMPSIT 

• 

Part  11.      short  of  payment  to  the  creditor  will  discharge  him  from  the  ac- 

igent,  wife,  tion.(l)     But  the  two  first  cases,  resting  only  on  presumption, 

&c.        may  be  destroyed  by  evidence,  which  shews  that  the  defendant 

"~~~~~~~  never  cntrusteil  his  wife  or  servant  to  buy  on  credit,  and  that  it 

Stu>)bin-v      ^^^^  known  to  the  plaintiff;  for  if  the  defendant  prove  that  he 

Heiniz,  Peak,  gave  them  money  to  pay  for  the  articles  as  they  bought  them, 

^^'     '  or  that  during  a  temporary  absence,  he  made  an  allowance  to  the 

(2)HoliTJ.      wife  for  the  supply  of  necessaries  for  herself  and  family,(2)  and 

&T."252.       ^^^t  the  plaintiff  knew  of  or  was  acquainted  with  the  fact,  or  that 

his  usual  custom  was  to  pay  the  plaintiff  weekly,(3)  this  shews 

Scibbirigu     that  he  never  did  authorise  them  to  contract  for  him,  and  he  is 

*J|-^"^\^' ^'^'*''- not  bound  by  their  contract.  The  case  of  clothes  furnished  to 
Cas.  47.  •'  ..... 

a  married  woman  is  similar  in  its  nature,  if  suitable  to  the  hus- 
band's station  in  life,  the  presumption  is  that  he  authorised  his 
■wife  to  buy  them  ;  but  if  it  should  appear  that  he  gave  her  money 
to  pay  for  them,  or  desired  the  plaintiff',  or  his  servant,  not  to 
trust  her,  or  if  from  other  circumstances  it  appears  that  the 
^^^/^^ffi^^'^  tradesmen  gave  credit  to  the  wife  and  not  to  the  husband, (4)  the 
5  Taunt.  35€.  husband  will  not  be  liable. (5)(g-) 

f  5")  Ethe,  ino--  ^^  cases  where  the  husbaiid  and  wife  are  parted,  the  law  pro- 
ton V.  Parrot,  ceeds  on  a  different  principle.:  it  does  not  there  look  to  the  will, 
1  Salk  118  .  . 

but  to  the  duty  of  tlie  husband  :   if  he  turn  his  wife  out  of  his 

house,  or  behave  so  cruelly  to  her,  that  she  cannot  with  safety 
remain  in  it,  he  is  liable  for  articles  of  provision  and  dress,  suita- 
ble to  his  station,  furnished  to  her  by  a  third  person,  though 
against  his  express  direction  ;  for  the  law  will  not  permit  her 
to  starve:  and  proof  of  the  articles  having  been  delivered,  and 
that  the  defendant  is  her  husband,  is  sufficient  for  the  plaintifl' 

(6)  Boulton    ^Q  charge  him.(6)     To  discharge  himself  from  the  action,  it  is 

f .  Prentice,  »  '  » 

2Sira.  1214.  incumbent  on  the  husband  to  prove  that  the  wife  has  forfeited 
her  claim  to  his  protection,  by  living  in  a  state  of  adultery  at 
the  time  the  goods  were  furnished,  (for  the  mere  circumstance 
of  her  having  formerly  committed  adultery  will  not  be  a  defence, 
if  the  husband  afterwards  received  her  back,  and  turned  her  out 

(7)  Harris  r.  a  second  time  -,(7)  )  or  that  she  left  his  house  against  his  con- 
Morris,  4  Esp.  ^  ,        .'^    \'  .,  „  C  J.  r 

Cas.  41.  sent,  and  without  reasonable  cause  ;(8,  or  retuses  to  return; 
,„,,,  and  in  the  latter  case  it  should  also  be  proved,  that  either  a  ee- 

1 8  J  iVxanwar-  "  «  '  o 

ing  tj.  Sands,  neral  notice  was  published  by  the  husband  to  all  persons  not  to 
2Stra  705.    j-j-yg^  his  wife,  or  a  particular  notice  given  to  the  plaintiff.(9) 
(9)VideiLd.      If  the  husband  and  wife  are   parted   by  mutual  consent,  and 
Raym.  444.    ^^  y^^^  ^  separate  maintenance  allowed  by  him,  he  will  not  be 


(f )  Vide  ante,  p.  39,  n.  (A) — Am.  Ed, 


PAROL  CONTRACTS,  gj^g 

liable  even  for  necessaries  found  her  :  and  the  general  and  pub-  Ch.  ii.  s.  2. 
lie  notoriety  of  their  beine  so  parted  is  sufficient,  without  proof  <^o"'»'«ct  by 
of  particular  notice  to  the  plaintift'.(l)  &c. 

In  the  case  of  persons  of  an  inferior  station  in  life,  the  earn — 

ings  of  the  wife  had  been  he^ld  equivalent  to  an  allowance  by  ( ^ )  l'"''d  t-. 
the  husband  :(2)  but  where  the  wife  of  a  gentleman  of  rank  and  16.  vide  Bui 
fortune  was   parted  from  him   without  any  allov/ance  by  him, '^^  ^*- ^•^^• 
though  she  had  a  pension  of  400/.  a  year,  during  the  pleasure  of  (2)  Warrt' 
the  crown,  the  husband  was  held  liable  to  her  contract  for  ne- ?^^jjJ''?T| 
cessaries.(3}*  N.  p.  133. 

(3)Tbnnipsor, 
V.  Harvey, 

Adionfor  money  paid  to  the  defendant's  use  ;  for  money  lent;  and^^^'^^'  "^'^^ 
on  an  account  stated. 

To  support  the  action  for  money^paid  to  the  defendant's  use,^°"'^y  P*'"' 
the  plaintiff  must  prove  either  that  he  has  paid  such  money  at 
the  request  of  the  defendant,  or  else  that  he  has  been  compelled 
to  pay  it,  in  consequence  of  his  misconduct,  or  of  an  engage- 
ment which  the  plaintiff  had  entered  into  on  his  behalf,  or  in  aLewfs*^" 
case  where  they  were  jointly  liable,  and  where  the  defendant  1  '^^  Rep.  20 
ought  to  have  paid  his  proportion  ;  for  no  man  can  of  his  ownjeT  st.  Ken' 
act  make  another  his  debtor  against  his  will.t(A)  610. 

In  the  second  of  these  cases,  as  where  the  goods  of  A.  a 
lodger  in  the  house  of  jB.  are  distrained  by  the  landlord,  and  ./?. 
brings  an  action  against  B.  to  recover  the  money  which  he  has 
been  obliged  to  pay  to  redeem  his  goods,  he  must  prove  that  the 
money  was  due,  and  a  distress  made,  and  that  he  gave  notice  to 
B.  of  it,  and  requested  him  to  pay  the  money,  or  indemnify  him 
in  replevying  the  goods,  and  that  on  such  refusal  he  paid  it  him- 
self4 

•  The  numerous  cases  whic)i  have  arisen  on  this  subject  are  collected  together 
in  Mr.  A'olati's  edition  oi  Strange,  1214,  notr  (1.) 

■f  In  general  one  partner  cannot  maintain  an  action  at  law  against  another  for  the 
non-performance  of  any  duty  owing  from  him  as  partner,  unless  on  an  express  co- 
venant or  stipulalioii ;  but  where  ^  agreed  with  B.  to  take  one-half  share  of  cer- 
tain goods  bought  by  B.  and  to  bear  half  of  any  loss  that  might  arise  on  them,  or  have 
half  the  piofit  that  might  be  made,  and  to  furnish  B.  with  half  the  amount  of  the 
purchase  money  in  time  for  payment,  it  was  holden  that  an  action  for  money  paid  to 
the  use  of  ^.  lay  against  him  for  his  n)oiety  of  the  price,  for  that  was  to  be  furnished 
by  him  in  the  first  instance,  alltiough  there  might  be  an  account  to  be  taken  between 
jthem  as  partners  upon  the  subsequent  disposal  of  the  slock.  Venning  v.  Leckie,  1£ 
East, 7. 

(A)  Vide  ante,  p.  302,  n.  (a)— Am.  En.  ^ 

*  Exall  V.  I'artridge,  8  T.  Rep.  308.    Iri  this  case  ft  was  held,  that  if  a  lease  bt 


390  ASSUMPSIT. 

Part  II.         And  here  it  should  be  observed,  that  an  actual  payment  must 

'be  proved  to  maintain  this  action  ;  for,  if  instead  of  paying  the 

Aloote  V        money,  ^.  were  to  permit  the  landlord  to  sell  his  goods,  a  spe- 

Pyrke,  cial  action  on  the  case  would  be  his  only   remedy;  for  imme- 

11  Last,  5-.     ^iately  on  the  sale,  the  money  paid  by  the  purchaser  vests  in  the 

landlord  in  satisfaction  of  the  rent,  and  never  is  the  money  of 

the  person  whose  goods  are  distrained;  and  in  like  manner,  where 

the  surety  has  the  old  security  cancelled,  and  gives   a  new  one 

this  form  of  action   has  been  considered  as  equally  insupporta- 

(1)  Taylor     ble.(l)     So  where  an  auctionefer  having  been  employed  to  sell 
3 VvP'i'oO     ^^  estate,  the  seller's  title  to  which  was  defective,  the  purchaser 
Maxwell  V.    brought  an  action  against  the  auctioneer  to  recover  back  the  de- 
^ames^in^  52  po^it  money,  and  the  seller  refusing  on  notice  to  defend  the  ac- 
tion, the  aucti«)neer  paid  the  deposit,  and  also  the  costs  of  the 
action  and  his  own  attorney's  costs,  and  then  brought  an  action 
against  the  seller  for   money  paid   to   his  use.     Lord   Ellen- 
borough  held,  that  he   could  only    recover  the  deposit  in  this 
form  of  action,  a  special  count  being  necessary  to  recover  the 

(2)  Spurrier    costS.r2) 

5  Esp.'^Ca"'!.  If  ^^^  payment  were  made  in  consequence  of  a  bond,  wherein 
^jthe  plaintiff  became  bound  as  surety  for  the  defendant,  the  first 
proof  will  be  the  due  execution  of  the  bond  by  tliem  both  ;  then 
that  the  plaintiff  was  called  upon  to  pay  the  money,  and  gave 
notice  thereof  to  the  defendant  before  he  paid  it.  To  prove  the 
payment  of  the  money  in  these  ca-ies,  the  person  who  made  it, 
or  he  by  whom  it  was  received,  should  be  called  as  a  witness, 
for  the  receipt  or  acknowledgment  of  that  person  will  be  no  evi- 
dence against  the  defendant;  and  if  levied  under  an  execution, 
a  copy  of  the  writ  should  be  provedj.(i)     In  case  there  are  two 

made  to  ..3.  B.  and  C.  and  B.  and  C.  assign  to  ^.  who  occupies  the  premises,  and 
goods  are  bailed  to  him  by  D.  which  are  disti'aiiied  by  the  lanrtlord  for  rent  due 
from  ./?.  B.  C.  they  are  alt  liable  to  an  action  at  the  suit  of  D.  though  he  knew  of 
the  assignment. 

Action  by  surety  against  his  priticipal. 

(i)  A  surety  may  recover  of  his  principal,  though  the  money  was  paid  for  him, 
on  an  usurious  contract  m;tde  by  the  principal,  and  which  he  might  have  avoided. 
Ford  V.  Keith,  1  Mass.  liep.  139. 

An  action  for  money  had  and  received,  will  not  lie  in  such  a  case ;  it  should  be 
for  money  laid  out  and  expended,  -ibid. 

If  the  surety  in  a  coniract,  or  his  executor  or  administrator,  pay  the  money  due 
on  the  cont  act,  although  the  credit'ir  could  not  have  enforced  payment  by  action 
against  him,  he  may  recover  (if  the  principal  the  money  so  paid,  if  the  principal 
were  irgally  bound  to  pay  it.   Shaw  et  al.  v.  Loitd,  1'2  Do.  447. 

liut  it  a  person  become  surety  at  the  request  of  another  surety,  who  pays  the  debt, 
the  former  is  not  liable  to  the  latter  for  a  contribution.    Taylor  v.  Savage,  ibid.  98. 


PAROL  CONTRACTS,  3g^ 

sureties,  each  must  bring  a  separate  action  for  the  money  which  Ch.  M.  s.  2. 
he  personally  paid  ;(1J  and  where  several  persons  become  sure-  '^""«^>' P»'*'- 
ties  for  a  third,  and  one  has  been  obliged  to  pay  the  whole  debt, 
he  may,  by  separate  actions  against  each  of  the  others,  compel  B„uicot',  3^ 
them  to  contribute   their   respective    proportions    towards  his'^^°s-^Pui- 
loss. (2)     In  this  case   tlie  obligation  of  the  plaintiff,  the  defen- 
dant, and  the  other  sureties  must  be  proved,  the  application  to  [^j^^°j][^' ^• 
them,  and  the  payment  by  the  plaintiff.  It  was  in  one  case  held,'2Bo3.  &  Pui. 
that  where  a  bill  of  exchange  had  been  drawn  by  one  of  three 
partners,  in  the  name  of  himself  and  the  others,  after  the  disso- 
lution of  the  partnership,  in  favour  of  a  person  who  did  not  know 
of  such  dissolution,  and  the  other  two  partners  had  thereby  been 
obliged  to  pay  the  money  that  they  might  join  in  an  action  to 
recover  it;(3)  but  this  case  was  decided  under  very  particular  (3)  Osborne 
circumstances  ;  viz.  it  clearly  appearing  that  the  plaintiffs  had  jJ^g^Pp^tfj 
jointly  borrowed    the  money,  and  had  given  a  joint  note  for 


A  surety  may  maintain  an  action  of  assumpsit  i'ov  money  paid,  where  the  surety 
in  a  bond,  has  jiaid  the  proper  debt  of  the  principal.  Bunce  v.  Bunce,  Kirb. 
Rep.  137. 

But  an  action  will  not  lie  on  a  general  promise  of  indemnity  uppn  a  mere  Uability 
in  the  surety  to  be  sued  or  called  upon  for  the  debt.  Bventnal  v.  Holmes,  1  Roofs 
i?e/>. '391. 

Where  a  bond  with  sureties  is  given  to  the  United  States  for  duties,  and  A.  is 
mentioned  as  the  importer,  and  B.  the  surety  pays  the  bond,  he  may  maintain  an 
action  o(  assumpsit  »g&m%t  A.  though  in  fact  a  third  person  was  the  real  owner  of 
the  goods.  Shiby  v.  Champlin,  iJofms.  Rep.  461. 

A  surety  qua  surety,  cannot  call  on  his  principal  at  law, until  he  has  actually  paid 
the  money.  Powell  v.  Smith,  S  Johns.  Rep.  192.  Pigon  v.  French,  C.  C.  April, 
1805,  M.  S.  Rep. 

A  surety  who  h;ts  paid  the  debt  of  the  principal,  is  entitled  to  be  put  in  the  place 
of  the  creditor,  and  to  all  Ihe  means  which  the  creditor  possessed,  to  enforce  pay- 
ment against  the  principal  debtor.      Clason  et  at.  v.  Morris  et  al.  10  Do.  525. 

It  seems  Chancery  would  compel  the  creditor  to  assign  to  the  party  the  judgment 
against  the  principal  creditor,  ibid. 

One  surety  in  an  administration  bond,  cannot  bring  an  action  against  his  co-surety, 
for  an  alleged  default  in  the  ailministrator,  before  he  has  been  damnified  in  hischa» 
racter  of  surety.  The  People  v.  Duncan,  1  Do.  311.  ^ 

When  the  princi|)al  assigns  a  fund  to  trustees,  to  pay  a  creditor,  whom  the  surety 
afterwards  pays,  and  the  proceeds  of  the  fund  are  then  paid  over  by  the  trustees, 
the  surety  is  entitled  to  the  benefit  of  the  fund,  and  may  recover  it  from  the  person 
who  possesses  it,  in  an  action  of  assutnpait  lor  money  had  and  received  in  his  own 
name.  Miller  et  al.  v.  Ord,  2  Binn.  Rep.  382. 

Where  money  is  paid  by  a  surety  for  two  principals,  the  law  implies  a  promise^ 
by  each  principal,  to  reimburse  ihe  surety  for  the  whole'  amount  paid.  Duncan  et 
al.  V    Keiffer,  3  Binn.  Rep.  126. 

The  surety  is  entitled  to  recover  of  the  principal,  just  the  same  specific  thing 
which  he  has  been  adjudg-  d  to  pay.   Graves  v.  Webb,  1   Cniri  Rep.  44;J. 

An  action  will  lie  by  the  surely  against  the  principal  on  a  bond  of  iudeianification^ 


S9S  ASSUMPSIT. 

Part  II.     part  of  it,  and  on  that  ground  only  the  joint  action  was  main- 
^^"■"^y  P"'^'-  tained.C/t) 

"  In  the  cases  which  have  been  just, mentioned,  the  law  implies 

a  promise  of  indemnity,  and  such  promise  arises  in  every  case 


after  the  rendiiioiWf  judgment,  without  proof  of  satisfaction  of  the  judgtneat.  MtiV- 
rell  V.  Johnson,  1  Hen.  &  Munf.  Rep.  449. — Am.  Ed. 

Contribution  ofjoijit  trespassers,  co-sureties,  &c. 

(Jc)  In  a  recovery  for  a  tort,  no  contribution  can  be  compelled,  if  one  of  the  defend- 
ants have  been  obliged  to  pay  the  contents  of  the  whole  execution.  Wilfordet 
al.  V.  Grant,  Kirb.  Rep  114. 

A,  B.  and  eight  others  made  a  purchase,  and  gave  their  joint  bond.  All  signed 
as  the  securities  of  each,  though  they  were  severally  to  pay  different  shares  of  the 
amount;  A.  became  a  bankrupt  before  payment  of  his  share,  B.  then  paid  one-ninth 
partof.-i's  share  and  a  small  sum  over;  after  which  B.  brought  a  billin  Chancery, 
against  the  other  co-obligors  for  a  contribution.  The  Court  decreed  that  each  of  the 
respondents  to  that  bill,  should  pay  to  the  obligee,  one-ninth  part  of  the  loss  arising 
from  the  bankruptcy  oi  A.  and  also  pay  to  the  complaijiant,  one-eighth  part  of  the 
surplus  advanced  by  him.  Hydey.  T^'acey,2  Day's  Rep.  491 

A  surety  in  an  administration  bond,  cannot  maintain  an  action  against  his  co-surety 
for  a  default  in  the  principal,  if  such  surety  have  not  been  damnified  even  though  he 
be  a  creditor.  The  People  v.  Duncan,  1  Johns.  Rep.  310. 

In  J\i'orth  Carolina,  it  has  been  decided  that  a  surety  in  a  bond,  cannot  maintain 
an  action  at  law  against  his  co-surety  for  a  moiety  of  the  money  paid  for  their  prin- 
cipal without  an  express  assumpsit,  his  relief  being  in  equity.  Currington  v.  Car- 
son, Rep.  in  Co.  of  Conf.  216.  S.  P.  Robinson  v.  Kenon,  2  Hay-w.  Rep.  181. 

But  where  one  of  5ve  partners  executed  a  bond,  with  a  surety,  for  duties  on  goods 
imported  by  the  firm,  the  obligor  partner  died,  and  the  surety  paid  the  amount ;  it 
was  held  he  could  not  recover  contribution  from  the  other  four  partners.  Tom  v. 
Goodrich  et  al.  2  Johns.  Rep.  213. 

When  a  suit  is  brought  on  a  bond,  accompanying  a  mortgage,  the  Court  will  not 
interfere  to  prevent  thf-  plaintiff  from  levying  on  what  lands  he  pleases,  but  when  the 
money  is  brought  into  Court,  they  will  decide  who  shall  make  contribution.  Mor- 
ris's exrs.  v.  J\r  Conaughey's  exrs.  1  Yeates'  Rep.  9. 

A.  mortgages  land  and  dies,  after  having  devised  all  his  estate  to  B.  who  devised 
the  mortgaged  premises  to  C  for  life,  with  power  to  dispose  thereof  by  will,  and 
gives  the  rest  ot  her  estate  to  her  executors,  who  sell  part  of  it  for  the  payment  ot 
debts;  judgment  having  been  obtained  on  the  bond  accompanying  the  mortgage, 
the  Sheriff  levies  on  all  the  land  undisposed  of;  adjudged,  that  all  the  lands  levied 
on  shall  contribute Recording  to  the  value  of  the  several  tracts.  Morris's  exrs.  v. 
MConaughey'sexrs.  2  Dull.  Rep.  189.  S.  C.  1  Yeates'  Rep.  189. 

A  Court  of  Equity  will  not  compel  a  surety  in  a  bond  to  contribute  to  the  relief 
of  his  co-surety  who  has  been  f(  reed  to  (lay  the  debt,  unless  it  appear  that  due  dili- 
gence was  used,  without  effect,  to  obtain  reimbursement  from  the  principal  obligor, 
or  that  lie  was  insolvent.  M'Gormack's  admr.  v.  O'Bamwn's  exr.  3  Munf. 
Rep.  484. 

The  defendant's  signed  a  call  to  a  minister  of  the  Presbyterian  church,  in  which 
they  promised  to  provide  for  his  maintenance,  ''  in  the  mariner  set  forth  in  the  sub' 
scription papers  accompanying  the  call."  By  that  paper  they  promised  "to  paif 
fiim,  or  his  order,  the  sums  annexed  to  their  names,  yearly,  and  every  year,"  ^c. 
f^kh  liberty  to  any  subscriber  to  withdraw  at  the  end  of  the  year.    Held,  that  they 


PAROL  CONTRACTS.  ggg 

where  they  are  jointly  liable  to  a  third  person  upon  their  joint  Ch.  ii.  s.  2. 

contract.     But  in  cases  where  two  are  jointly  suetLin  tort,  or  -^'""  y  ''»'«'• 

trespass,  and  the  whole  damages  are  levied  upon  one,  the  law    ~  ' 

does  not  raise  any  such  promised  1)     To  recover  a  contribution  \^,j,,'j,,^|.''^" 

or  indemnity,  therefore,  in  a  case  of  this  sort,  the  plaintiff  must  "^^''^"•'.  8 

prove  an  express  promise  on  the  part  of  the  defendant;  and  it  {.'ar^hio'hei- 

has  been  held  that  such  express  promise  will  support  the  action^,  ^"f"^^' ![ 

even  in  a  case   where   neither  the  plaintiff  nor  defendant  were  w-ison  v. 

liable  to  pay  the  money  ;  for,  where  two  persons  were  jointly  el^'^^''-"'T'^52 

gaged  in  an  illegal  stock-jobbing  transaction,  and  one,  by  the 

express  authority  and  direction  of  the  other,  paid  the  wiiole^jl^^^*'''"^-'^ 

loss,  it  was  held  that  he  might  recover  a  moiety  of  it  from  theR^p  4is 

other  (2^  *^  ''  ''"'''  ^"* 

"^"^'H-'';  beriT^.  Mace, 

To  support  the  action  for  money  lent,  the  plaintiff  must  prove  -2  b,&  p.  S71. 
that  money  was  lent  by  him  to  the  defendant,  either  by  calling  f^'gh'^,,"' q-^^ 
some  person  who  was  present,  or  by  proving  the  defendant's  ac- R  p.  fit. 
knowledgment,  which  it  has  been  held  a  promissory  note  amounts  .  ui-.'^er' V  T. 
to,  and  is  therefore  evidence  on  this  count.(3)  But  the  bare  cir- '^  i'- ^''O;  an^l 
cumstance  of  the  plaintiff  having  drawn  a  check  on  his  banker,  b  ire,  3  Barn. 
and  of  the  defendant  having  received  the  money,  is  not  suffi-  ^  S'*!  }'^,\ 

°  .  ■'  .111  whicli  this 

cient  evidence,  without  also  shewing  some  money  transactions  .a^e  whs  ex- 
between  them,  from  whence  a  loan  mig-ht  be  inferred,  for  »rm«i"'f^fy  °^"'' 

,  ,        ,     .  ^  ruled. 

facie  the  check  imports  a  payment,  and  not  a  loan. (4) 

The  action  on  an  account  stated,  must  be  supported  by  6vi-[f^J^  Atoms' 
denceof  a  settlement  of  accounts  between  the  defendant  and  the  -  Sua  7i9;^ 
plaintiff,  or  some  person  on  his  behalf.(/)     And  though  the  reck-  .^,^,,  H^,.,.isv.' 
oning  be  only  of  what  is  due  to  the  plaintiff,  without  any  coun-  Hunthach,  i 
ter  demand  by  the  defendant,  it  is  sulficient  to  sustain  the  count,    ""^' "" 
as  where  the  defendant  and  the   plaintiff's  wife  reckoned  that(*)'^a''.v  *• 
the  defendant   had  borrowed   at  otie  time  40s.  at  another  40s.  Esp  C.<'s.  9. 
and  at  another  4/.  making  together  8/.  it  was  objected,  that  this  ^"'^*''^  '": 

°       *                                        •'             *  Walsh,  4 
Taunt.  223. 

were  no!  bound  jointly  for  the  whole  subscrip?ion,  but  eich  for  himself,  to  the 
amount  of  his  own  subscription.  Riddle  et  al.  v.  Stevens,  2  Ser^.  &  R.  Rep,  537. — 
Am  Ed. 

(J.)  Joint  partners ,  in  a  mercantile  transuction,  may  liwe  account  render  against 
each  other  by  the  common  law.  Ttntmta  in  coimnoi.,  by  th^  27' h  sect  of  the  Stat. 
4.:/nne,  c.  16,  in  Penmyh ania.   Griffith  v.  frilli:,g  et  al.  3  Birm.  Rep  317. 

To  support  an  action  of  account  render,  a  otitract  eilher  ex|iriss  or  implied  must 
he  ahbv/n.  King- of  France  V.  Jlo7'ns,  cited  S  V(Uites' Rep  251. 

If  a  partner  acknowledge  thi  co  recti-ess  of  tht-  credits  and  df  bits  of  an  account 
taken  from  a  ledger,  the  entries  of  which  were  ntarly  all  in  his  own  hand-wiifing> 
but  at  the  same  time  deny  his  obligation  to  pay  the  balance,  alleging  the  existence 
of  a  partnership  between  himself  and  the  plaintiffs,  ibis  is  not  sufficieni   upon  an 

isimul  computassent.  Gillet  al  .v.  Kuhn,  6  Serg,  &  R.  Rep.  333.— Am.  Ed. 
3  E 


^94,  ASSUMPSIT. 

Part  II.      being  a  reckoning  on  one  side  only,  without  deduction  or  paj- 
Action  fop    ^g,^^.  Qjj  ^ijg  other,  did  not  support  the  count;  but  this  objection 

money  lent.  •  r  •         ,  i 

was  over-ruled.(l)     So   where  the  defendant  admitted  that  he 


(1)  Stuart  v.  ^^^^  bought  Standing  trees  of  the  plaintiff  for  a  certain  sum  of 
Rowland.  I  •  monev  ;  and  that  he  had  cut  them  down  and  carried  them  away; 

this  also  was  holden  snfficient.(2)     If  two  persons  are  in  part- 

(2)  K?iowles  nership,  and  covenant  to  account  with  each  other,  though  no  ac- 
East,  249.       tion  01  asstanpsif  will  he  on  these  articles,  till  an  account  has 

been  settled  and  liquidated,  yet  after  such  an  account  has  been 
taken,  and  the  balance  struck,  assumpsit  will  lie,  as  on  an  ac- 

(3)  Foster  v.  count  stated  ;(3)(7n)  and  where  there  being  accounts  between  ^. 
Allison^,  2  T.  ajj(]  /j,^  c.  became  a  partner  with  B.  and  dealings  continued  be- 
M*l)raviat>.  tween  B.  and  C  as  partners,  and  ^.  who  afterwards  settled  an 
Levy,  ibid.      account  with  B.  and   C.  wherein  was  included  the  money  due 

from  J2.  to  B.  alone, (4)  Lord  Kenyon  held  that  the  whole  might 
(4)Mooreanri  j^^  criven  in  evidence  under  a  count  on  an  account  stated,  in  an 

another  v.  » 

Hill,  Sitt.  action  by  B.  and  C.  But  money  due  from  an  executor,  or  from 
East'l'Os'^'^  the  defendant's  wife  whilst  sole,  cannot  be  blended  with  an  ac- 
M.  S.  count  of  the  defendant  as  an  individual,  so  as  to  make  him  ge- 

ciiet^rT.  R.  nerally  liable,  though  in  fact  included  in  the  same  account. 

Action  for  use  and  occupation. 

Action  for  use  ANOTHER  action,  which  generally  arises  on  a  parol  or  implied 
and  occu-  promise,  is  the  action  for  xise  and  occupation,  which  is  given  by 
the  Statute  11  Geo.  2,  c.  19,  s^  14,  by  which  it  is  enacted,  that 
"  where  the  agreement  is  not  by  deed,  the  landlord  may  recover 
a  reasonable  satisfaction  for  the  lands,  &c.  occupied  by  the  de- 
fendant, in  an  action  on  the  case  for  the  use  and  occupation  of 
what  was  so  held  and  enjoyed  ;  and  if  it  shall  appear  that  there 
was  a  parol  demise,  or  an  agreement  (not  being  by  deed)  whereon 
a  certain  lent  was  reserved,  the  plaintiff  shall  not  therefore  be 
nonsuited,  but  shall  make  use  thereof  as  evidence  of  the  quan- 
tum of  the  damages  to  be  recovered."  And  by  the  same  Act, 
sect.  15,  "  if  a  tenant  for  life  die  before  or  on  the  day  on  which 
any  rent  was  made  payable  upon  any  lease  which  determined  on 
the  death  of  such  tenant  for  life,  his  executors  may,  in  an  ac- 
tion on  the  case,  recover  the  whole,  or  a  proportion  of  such  rent, 
according  to  the  time  such  tenant  for  life  lived  of  the  last  year, 
or  quarter  of  a  year,  in  which  the  said  rent  was  growing  due. 


(m)  Beach  v.  Hotchkiss,  2  Con.  Rep.  425,— Am.  Ed. 


PAUOL  CONTRACTS.  ggg 

Since  the  Statute,  this  is  become  the  common  form  of  action  Oh.  u.  s.  2. 
in  all  cases  where  the  demise  is  not  by  deed,  and  even  where  ^an,°'', l""^ "*^ 
there  is  an  agreement  under  seal  for  a  future  lease,  if  such  agree-      pation. 

ment  do  not  contain  words  of  present  demise,  or  a  covenant  to    — ■ 

nay  rent,  it  may  be  used  as  evidence  in  this  form  of  action.  Banmstcrw. 

'    ''  .  .      .  Usborne,  K. 

To  support  the  action,  the  plaintiff  must  shew  that  the  defen- b.  sitt.  after 
dant  occupied   under  his  permission,  or  that  of  some  person  ^f''- ^- ^-^,,.  ^ 

t^  _  «  '  I  _     lico.  3.  Elliot 

through  whom   he  claims,  for  a  mere  stranger   cannot  try   his  v.  Rogers.  4 

title  in  this  form  of  action. (l)(n)     He  must  therefore  prove  ei-    ^^*' ^  ,a.P. 

(1)  Morgan  1). 

. A  nib  rose,  cor. 

Wilinot,  J. 
(jz)  In  Connecticut,   an  action  of  indebitatus  assumpsit,  will  lie  for  the  rents  and  Monmo^Sum. 
profits  of  lands,  and  such  an  action  is  not  within  the  Statute  of  Frauds  and  Perjuries,  jyj    o 
Jiogers  V.  Tracey,  I  Jioot's  Rep.  233. 

In  Pennsylvania,  indebitatus  assumpsit  for  money  had  and  received,  will  lie 
against  the  executors  of  an  intestate,  who  had  in  his  life-time  received  the  rtnts  and 
profits  of  an  estate,  of  which  he  had  wrongfully  possessed  hinaself.  Haldane  et  al.  v. 
Duche's  exrs.  2  Ball.  Hep.  176.  S.  C.  1  Yeates'  Hep.  121. 

But  such  an  action  will  not  lie  where  the  defendant  believed  he  possessed  a  title, 
even  though  he  had  been  evicted.     Wharton  et  al.  v.  Fitzgerald,  3  Dull.  Rep.  503. 

To  support  an  action  for  use  and  occupation,  since  the  Stat.  11  Geo  2,  c.  19.  sec. 
XIV.  a  promise,  either  express  or  implied,  must  be  shewn,  and  proof  given  that  '.he 
defendant  came  into  possession  by  permission  of  the  plaintiff;  or,  at  least,  such  strong 
circumstances  must  be  shewn  as  would  preclude  the  idea  ot  an  ailversary  claim. 
Pott  V.  Lesher,  1  Yeates''  Rip.  570. 

In  assumpsit  for  use  and  occupation, -the  plaintiff  must  prove  a  contract,  but  the 
proof  may  be  either  direct  or  presumptive.  If  he  prove  that  the  defendant  occupied 
the  land  by  his  permission,  it  is  enough,  and  the  law  Will  in  such  case  imply  that 
the  defendant  promised  to  pay  a  reasonable  rent.  Ileirvood  v.  Chedseman,  3  Serg, 
&  R  Rep.  500.  F.t  vide  Osgood  v.  Dewey,  13  Johns.  Rep.  240. 

But  if  the  defendant  came  on  as  a  trespasser,  the  plaintiff  cannot  recover,  ibid. 
3  Serg.  ^  R.  Rep.  500. 

In  Virginia,  assumpsit  (ov  ase  ixm]  occupation  of  land,  by  permission  and  assent 
of  the  plaintiff,  on  an  express  promise  to  pay  the  plaintiff  a  certain  sum,  or  in  gene- 
ral terms,  to  pay  him  to  his  satisfaction,  for  such  use  and  occupation  lies  at  common 
law,  independently  of  the  Statute  of  11  Geo.  2,  c.  19.  Eppes's  exrs.  v.  Cole  et  al. 
1  Hen.  &  Munf  Rep.  161. 

It  would  seem  that  such  an  action  is  maintainable  without  proof  of  an  express  pro- 
mise, but  this  point  was  left  open.  ibid. 

In  jyorth  Carolina,  it  seems  that  indebitatus  assumpsit  will  lie  for  the  rents  and 
profits  of  land,  on  a  promise  either  express  or  implied  Hayes  v.  Acre,  Rep.  in  Co. 
ofConf.  19.  1  Hayiv.  R,^p  485. 

In  South  Carolina,  though  no  distress  can  be  made  for  rent,  unless  some  specific 
sum  be  reserved  in  a  deed,  or  hy  parol  agreement,  yi't  m  such  a  case  assumpsit  lor 
the  use  and  occupation  of  (hr  preims.  s  will  be  susf.uned.  Smith  v.  The  Sheriff  of 
Charleston  Distnct,  1  Jiay^s  Rep  443. 

Where  there  is  a  contract  for  the  purchase  of  land,  under  which  the  purchaser 
enters  into  possession,  but  i.ftcrwards  cefnst-s  to  complete  ihe  purchase  ;  the  vendor 
cannot  maintain  an  action  of  assumpsit  for  use  and  occupation,  but  must  resort  to 
an  action  of  trespass  and  ejectment,  to  recover  the  7nes7w  projts.  Smith  v.  Stewart, 
*;  Johm.  Rep.  46. 


39(}  ASSUMPSIT. 

Part  II.      ther  an  actual  demise,  the  payment  of  former  rent,  eith^t  in  the 

Aciiontorusi  i,gyal  course,  (in  which  case  it  will  be  proper  to  give  the  defen- 

pation.       dant  notice  to  produce  the  receipts,)  or  under  a  distress  made 

.  by  the  plaintiff"  (in  which  case  the  notice  of  distress  should  be 

(1)  PHiitoii  V.  proved  ;)(1)  or,  as  in  the  case  above-mentioned,  a  permission  to 
Canii/b.  372.  enter  and  hold  until  a  formal  lease  or  future  conveyance  should 

be  executed.  If  it  be  proved  that  the  defendant  entered  by  per- 
mission of  the  plaintiff,  and  then  that  he  demised  to  another, 
who  occupied,  this  will  be  evidence  of  an  occupation  by  him,  and 

(2)  Bull  V.      the  rent  may  be  recovered  from  him  in  this  form  of  action  ;(2) 
Sibbs^s  T  .     jjy^  ji^g  person  who  comes  into  possession  will  not  be  liable  in 

this  action  for  the  antecedent  occupation  of  the  person  from  whom 
he  received  the  premises  ;  and  therefore  where  assignees  of  a 
bankrupt  took  possession  in  the  middle  of  the  year,  of  premises 
occupied  by  him,  and  continued  for  some  time  in  possession,  it 
was  held  that  they  could  only  be  charged  for  that  portion  of 

(3)  N'aish  v.    time  during  which  they  themselves  had  occupied. (3)*     If  the 

Tall'  ck,  '2  H. 

Black.  319. '■ " 

■Vi<le  Posi  Titles,  Landlord  and  Tenant,  CV.  IX.  sec.  III.  JMesne  Profits,  Ch.  X. 

An  action  of  assumpsit  for  t lie  use  anil  occiipaiion  of  hiiirls,  is  not  local,  biing 
founded  on  a  privity  oi  contract,  anjl  not  privit)  of  es<a<e.  Corporation  of  ^Yew  York 
V.  Dawson,  2  Jo/ms.  Cas  335. — Am.  Ed. 

*  The  bankrupt  in  this  case  would,  before  the  late  Act  of  Parliament,  have  been 
liable  to  stn  action  oi  assumpsit  for  tlxp  whole  rent,  for  his  contract,  being  to  pay 
during  the  tt-nancy ,  is  fxecutory  and  not  dischnrged  by  the  certificate.  Boot  v.  fVil- 
son  and  another,  8  East,  311.  So  he  would  also  have  been  liable  to  an  action  of 
covenant  on  a  Lase,  notwithstanding  his  certificate.  Jilills  v.  Jluriol,  1  H.  Black. 
433.  4  T.  Rep.lX  But  dfbt  would  not  lie  against  the  original  lessee  for  rent  ac- 
cruing aft«  r  his  bankru[)tcy,  and  after  the  assignee  took  possession  under  the  comr 
missioiiei's  assignment.  JVudham y .  JMarlotu .  %  East ,  314,  note.  Now,  however, 
it  is  p  o\ided,  that  where  a  commission  of  bankrupt  shall  be  sued  forth  against  any 
person  who  shall  be  entitled  to  any  leas.-,  or  agrei'mentfor  a  lease,  and  the  assignee 
shall  accept  ih-  same,  and  the  benefit  therefrom  as  part  of  the  bankrupt's  fstate  and 
effects,  the  bankrupt  shnl'  not  be,  or  be  deimid  to  be  Uable  to  pay  the  rent  accru- 
ins;,  due  aitei-  such  acci'ptanc-  of  the  same  as  aforesaid  ;  and  after  such  acceptance 
the  bankrupt  shall  not  be  liable  to  the  con.litions,  cowuants,  or  agreements  therein 
contained;  provided  that  in  all  such  cas-  s  it  shall  be  lawful  for  the  lessor,  or  person 
agret-mg  to  niakf  such  lease,  his  heirs,  executors,  administrators  or  assigns,  if  the 
assignees  shall  decline,  upi  in  their  being  required  so  to  di,  to  determine  whether 
they  will  or  wdl  not  so  ace -pt  such  l-ase  or  agreement  for  a  lease,  to  apply  by  pe- 
tition to  the  Loril  Chancellor,  Lord  Keeper  or  Lords  Commissioners  of  the  Great 
Seal,  pr»ying  that  ihey  may  either  so  actept  the  same,  or  deliver  up  the  lease  or 
agreement  for  the  lease,  and  the  possessiun  of  the  premises  demised,  or  intended 
to  be  demised,  who  shall  the:  eiipon  make  such  order  as  in  all  the  circumstances  of 
the  case  shall  seem  meet  and  just,  and  which  shall  be  binding  on  all  parties.  Slat. 
49  Geo.  3,  c  121,  s.  19  On  this  Statute  it  has  been  liol.leu,  that  if  the  assignee  of  a 
lease  becoinc  bankrupt,  and  his  assignees  ret  is-  loaccpt  the  lease,  the  bankrupt 
still  remains  liable  on  his  privity  of  estate.  Copeland  v.  Stephens,  i  B,&  A,  593. 


PAROL  CONTRACTS.  ggy 

Owner  of  an  estate  let  it  to  a  tenant  from  year  to  year,  and  then  ch  ir.  s.  2. 
arrant  an  annuity  chargeable  upon  it,  and  the  grantee  afterwards  ^'=^'"," '°'"  "«^ 

°  ■"  1  •      1  I  I  •  and  occu- 

brino-  an  ejectment,  and  recover  jiulgment ;  he  may  then  main-      paiion. 

tain  this  action  against  the  tenant,  and  recover  all  rent  remain- 

ing  in  his  hands  previous  to  the  day  of  the  demise  in  the  eject- ^''''^h  ^• 

»  .  .  \Vri"lit    I  T 

ment,  for  the  tenant  virtually  held  under  him  ;  but  he  cannot  re-  Roprsrs. 
cover  for  any  rent  due  subsequent  tO  the  day  of  the  demise,  for 
he  is  not  permitted  to  act  so  inconsistently  as  to  treat  the  les- 
see as  a  tenant  and  trespasser  during  the  same  period  of  time.   Hanson  v. 

In  proof  of  the  occupation,  it  should  appear  that  such  occu-^""'''"' 
pation  has  been,  as  far  as  depended  on  the  plaintiff,  beneficial  tOp   ,    ,„_ 
the  defendant.(o)     Therefore  where  the  plaintiff,  representing  I'js. 
himself  to  have  a  longer  term  than  he  really  had,  agreed  with 
the  defendant  to  assign  such   term  to  him,  and  the  defendant 
thereupon  took  possession,  which  possession  was  injurious  rather 
than  beneficial  to  him,  by  reason  of  the  plaintiff  having  a  shorter 
term  in  the  premises  ;  Lord  Kenyon  held  the  seller  could  not, 
on  the  purchaser  rescinding  the  contract,  and  delivering  back 
the  premises,  maintain  this  action  for  the  time  he  was  in  pos- 
session.    Indeed  in  one  case,(l)  the  Court  of  Common  Pleas (i)  K''"t'an'l 
seems  to  have  been  of  opinion,  that  in  no  case  where  a  purchase  o-raunt.^'i4'5- 
went  off  on  account  of  a  defect  of  title,  could  the  seller  main- 
tain this  species  of  action  for  the  use  which  the  defendant  had 
of  the  premises  during  the  time  he  was  in  possession.     They  did 
not  however  decide  the  case  on  that  ground,  but  proceeded  on 
the  idea  of  the  interest  of  the  money  which  the  purchaser  had 
paid,  being  a  sufficient  compensation  for  the  use  which  he  had 
of  the  premises.     But  in  a  subsequent  case,(2)  the  Court  of  Ex-  (2)  Hall  v. 

Vauglian,  6 
. Price,  169. 

(o)  Any  mterrufition  in  the  enjoyment  of  the  premises,  will  suspend  the  rent. 
Vaughan  etal.\   Bhmchard  ei  ul.^iDall.  Rep.   124.' iS.  C.  1  Teates'  Rep.  175. 

Where  l)y  mistake,  the  vendor  of  a  tract  of  land,  delivers  to  the  vendee  posses- 
sion of  other  land,  which  does  not  belong  lo  him.  and  the  vendee  is  evicted  from 
such  other  land  ;  he  is  not  to  be  compelled  lo  pay  r'  nt  to  the  vendor  for  the  time, 
he  remained  in  possession  thereof;  although  he  continue  to  hold  the  full  quantity, 
which  he  bought  by  metes  ahd  bounds,  JVelson  v.  Suddarth,  1  Hen.  ^  Munf. 
Rep.  350. 

Under  what  circumstances  n  subsequent  lease  made  by  the  landlord,  of  the  de- 
mised premises  in  tlie  occupation  of  thi  assignee  of  a  residue  of  the  terra,  will  not  be 
deemed  an  eviction  of  the  lessee,  nor  bar  the  landlord  of  recovering  of  him  a  balance 
due  for  rent  on  the  original  contract.    Cooke  v.  Wise,  3  Hen.  &  Munf.  Rep.  463. 

If  the  tenant  have  enjoyed  the  land,  h.  cannot  repel  his  landlord's  claim  for  rent 
by  saying  he  had  nothing  on  the  land,  or  that  the  conveyance  was  V(3id.  JVatson 
etal.  V.  Mexunder,  I  Wash.  Rep.  440. 

It  IS  a  principle  of  law,  that  when  the  right  lo  land,  and  the  right  to  rent  issuing 
out  of  it,  are  united  in  the  same  (lerson,  the  rent  is  extinct.  Phillips  v.  Bomall,  2 
Binn.  Rep.  138.  S.  C.  3  Yeales"  Hep.  124.— Am.  Eu, 


398  ASSUMPSIT. 

Part.  II.      chequer  held,  that  the  vendor  might,  where  the  contract  had  gone 

anToixu'-^^  ^'^  without  fault  on  his  part,  and  the  occupation  had  been  benefi- 

pation.      cial  to  the  purchaser,   maintain  an  action  for  use  and  occupa- 

tion  ;  observing,  that  title  was  not  necessary  to  support  it,  the 

declaration  only  alleging  an  occupation  by  the  permission  of  the 

plaintiff;  and  such  also  appears  at  first  to  have  been  the  opinion 

of  Mansfield,  Chief  Justice,  in  Kirtland  v.  Pounselt. 

.1)  Brewer  r-.     If  the  agreement  be  in  writing,(l)it  must  be  produced,  the 

EstT^ns        plaintiff  cannot,  in  such  a  case,  go  upon  the  bare  occupation,  for 

where  there  is  an  actual  contract  none  can  be  implied.     It  is 

(2)  VUle  Doe  true  that  in  an  ejectment,(i2)  where  the  plaintiff's  v/itness  having 

r!'MorWs°  12  P'^ved  payment  of  rent,  said,  on   cross-examination,    that  an 

East.  23".       agreement  in  writing  relative  to  the  lands  in  question, (3)  had 

:3)LawT;.     been  produced  on  a  former  trial  between  the  parties,  but  he  did 

^''.'*',  ,,      not  know  the  contents  of  it,  and  another  witness  proved  that  he 

Pcskci  s  (is 

128,  ace.  had  seen  such  agreement  in  the  hands  of  the  plaintiff's  attorney 
that  morning  :  yet,  as  no  notice  had  been  given  by  the  defendarit 
to  produce  this  agreement,  the  Court  held  this  general  evidence 
not  sufficient  to  exclude  the  parol  evidence  of  payment  of  rent, 
or  to  rebut  the  inference  of  a  tenancy  from  year  to  year  arising 
from  it ;  but  this  case  would  hardly  apply  to  the  action  for  use 
and  occupation,  where  the  exact  rent  must  be  proved. 

What  instru-       jf  ^j,g  written  contract  amount  to  a  present  demise,  an  agree- 

ment  is  deeai-  .  .  '  iiii- 

ed  an  agree-    ment  stamp  IS  not  sufficient,  but  a  lease  stamp  should  be  impress- 
ed ;(4)  and  therefore  questions  frequently  arise  upon  the  con- 
struction of  agreements  between  landlord  and  tenant,  whether 
Goodti'tre       ^'^^y  ^^'®  *^  ^^  considered  as  agreements  only  for  a  future  lease, 
dem.  Est-    ,  or  as  amounting  themselves  to  an  actual  demise.     As  a  general 
WayirV.     I'li'c  it  may  be  laid  down,  that  when  the  clear  intention  of  the 
Rep.  735.       parties  appears  to  be  that  a  more  formal  instrument  shall  be  pre- 
pared between  them,  and  that  the  agreement  produced  is  merely 
to  ascertain  the  terms  of  such  future  instrument,  the  agreement 
shall  be  considered  as  executory  only,  and  not  as  conveying  any 
legal  interest ;  and  on  the  other  hand,  that  when  the  agreement 
purports  to  be  a  final  settlement  of  their  rights,  it  shall  be  deem- 
ed a  lease,  however  informally  it  may  be  drawn  up :  and  even 
in  the  case  of  an  agreement  for  a  future  lease,  if  such  agreement 
expressly  provide  that  it  shall  operate  as  a  lease  until  the  more 
formal  lease  shall  be  prepared  and  executed,  it  shall  have  the 
,  ->  ...  same  effect.     Thus  a  paper  writing,(5)  containing  words  of  pre- 

sent demise,  with  an  agreement  that  the  lessee  shall  take  pos- 
session immediately,  and  that  a  lease  shall  be  executed  at  a  fu- 
ture time,  but  making  no  further  provision  for  the  intermediate 


ment  and 
what  a  lease 


PAROL  CONTRACTS.  3gg 

holding,  is  only  an  agreement  for  a  lease.     So  an  instrument,  re-  cii.  il.  s.  u. 
citing  tliat  A.  had  agreed  that  in  case  he  should  be  entitled  to^^|^^'.^''Jj^^|;^_ 
certain  copyhold  premises  on  the  death  of  B.  he  would  imme-  ed  an  agrce- 
diately  demise  the  same  to  C.  and  declaring  that  he  did  thereby  "Ye" se?'*  "''"*' 
agree  to  let  and  demise  the  same  to  him,  and  promise  to  procure  _ 

the   license   of  tlie    Lord,   was  also  determined   to   be   no   de- 
mise.(1  )     Many  other  cases(2)  have  occurred  to  the  same  effect:  (i)  Doe  dem 
but  in  Poo/e  v.  Bentley,[?i)  which  arose  on  an  instrument  where- (.""^'g'^  ^'.j. 
by  Jl.  agreed  to  let,  and  B.  agreed  to  take  certain  land  for  six-  liip.  739. 
ty-one  years  at  a  certain  rent  for  building,  and  the  tenant  agreed  nvdein^East- 
to   layout   2,000/.  within  four  years,  in  building  five  or  more''ani  c.  Cl>ild. 
houses;  and  when  five  houses   were   covered  in,  the  landlord 
agreed  to  grant  a  lease  or  leases,  but  the  agreement  was  to  be  (2) R'^'' <ltm 
considered  binding,  till  one  more  fully  prepared  could  be  pro- AsIi burner,  5 
duced  :  the  Court  considered  the  latter  words  as  shewing  that^-Rtp-  ir<,;. 
the  future  and  more  formal  instrument  was  merely  for  further  Dcwdingr. 
assurance,  and  that  the  agreement  itself  in  the  meantime  amount-  j^,''^*^''  ^. 

111-  laint.  63. 

ed  to  a  complete  and  actual  demise.  Tt-npest  v. 

In  cases  where  the  quantum  of  rent  has  not  been  fixed  "po"  Ir.^rf'Tf'n^ 
by  the  parties,  the  plaintiff,  in  addition  to  tlie  evidence  above  Dem'.  Rrom- 
stated,  should  be  prepared  to  prove  the  annual  value  of  the  pi'e-5  e,/j53o 
mises  during  the  time  of  the  defendant's  occu patio n.(jo) 

The  defendant  who  has  so  occupied  by  the  permission  of  the^j^jlj         *^' 
plaintiff,  will  not  be  suffered  to  dispute  his  title  by  shewing  that 
he  had  no  legal  estate  or  power  to  demise,  as  that  he  had  been 
simoniacally  presented  to  the  living,  the  glebe  of  which  the  de- Loxley,  antcj 
fendant  had  occupied  as  his  tenant,(4)  or  that  he  had  previously*^- 
demised  to  another  person,  whose  term  had  not  expired  when  the  (5)  Philips  r. 
defendant  by  his  consent  entered  into  possession.(.5)  But  though  u'^"j|!''a'^'oo'  ^ 
the  defendant  is  precluded  from  disputing  his  landlord's  title  to        ^ 
demise,  he  is  at  liberty  to  shew  that  the  plaintiff  had  only  a  tem-!^^  Ambrose 
porary  int6reSt  at  the  time  of  the  demise,  which  has  since  ex-anit-,'i55. 
pired  :(6)  or  that  he  has  subsequently  mortgaged(r)  the  estate  to  s"ifouni  'f!™ 
another  person,  who  has  given  the  defendant  notice  to  pay  his  Siade,  4  T. 
rent  to  him ;  or  that  the  tenancy  has  been  determined  either  by    ^^' 
a  regular  notice  to  quit  on  the  one  side  or  the  other,(8)  or  an  ac-  (')  Holmes 

,  ,  ,  T.  Pontin 

tual  delivery  up  of  possession  by  the  defendant  to  the  plaintiff,  i\-ake's  Cas. 
and  an  acceptance  by  him. (9)     To  prove  these  facts  he  must  be^^* 
prepared  with  the  regular  evidence  to  shew  what  the  plaintiff's  ^8)  RedpaiU 
title  originally  was,  or  the  deeds  by  which  he  has  parted  with  Y;  ^^"^j^^^^ii 

(9)  White- 

(/))  Vide  Smi!h  v.  Ti,e  Sheriff  of  Charleston  District,  1  Ba'/s  Hep.  443.    Abed^^^'^^]'^  ■ 

'  al.  V.  JiaikUff,  l.T  Johm.  Iieh.\m.—.\yx.  Eii.  "  £'''^"''*'';\ 

Taunt.  510- 


tj.00  ASSUMPSIT. 

Part.  II.     it,  or  the  notice  given,  for  the  mere  fact  of  the  defendant  having 
m^mlnlel-  ^^^^  ^^^^^  tenant  is  sufficient  to  establish  the  plaintiff's  case. 

nieiilol'Farin. 

JEvidence  in  action  for  mismanagement  of  farm. 

The  action  against  a  tenant  for  not  properly  managing  a  farm, 

will  require  but  few  observations.     If  the  misconduct  consist  in 

the  breach  of  an  actual  agreement,  the  agreement  and  breach  of 

it  must  be  regularly  proved  ;  and  here  it   may  be  observed,  that 

an  agreement  to  take  a  farm  on  certain  terms,  to  be   made  the 

•subjectof  covenant  in  a  future  lease,  will,  after  entry  and  pay- 

I     ment  of  rent,  be  considered  as  so  far  creating  a  tenancy  as  to 

i      warrant  a  declaration  stating  lliat  the  plaintiff  had  demised  to 

(i)Temnpst  the  defendant.(l)     If  nothing  was  said  about  the  terms  of  hold- 

tr.  Rawiini;,     ing  at  the  time  of  the  demise,  (in  which  case  the  law  implies  a 

13  East,  18.  .        ,  1-         ..      .1  f  I    u      u       J 

promise  to  manage  according  to  the  course  of  good  husbandry 

,„^  powier     "^  ^'^^  country,)(2)  the  evidence  ought  to  shew  what  that  course 

V.  Waiket^s  is,  and  how  the  defendant  has  deviated  from  it.  Thus,  if  a  land- 

■    *^P'  ■■'  ■  lord  sue  his  tenant  for  taking  the  hay  and  straw  from  off  the  land, 

and  selling  or  consuming  it  elsewhere,  the  landlord  must  prove 

i       that  by  the  course  of  husbandry  in  the  neighbourhood,  the  hay 

I       and  straw  ought  to  be  consumed  on  the  farm  :  for  as  to  this  there 

is  no  general  rule,  some  countries  growing  hay,  &c.  for  the  mere 

purpose  of  being  sold.(3)     But  if  the  tenant  take  away  the  dung 

Hewit,4        which  arises  on  the  farm,  cut  down  trees  which  grow  upon  it,  or 

East,  154.       plough  up  the  meadow  land,  the  landlord  will  not  be  obliged  to 

prove  this  to  be  contrary  to  the  custom  of  the  country;  it  being 

contrary  to  the  rights  of  a  landlord,  as  settled  by  the  general 

(i)  Furber  t).  ^"^^^  ^^  ^^^^  which  govem  every  part  of  the  kingdom.(4) 

Andrews, 

cor.  Buller, 

J.  Winloii.  ,  ,  - 

.Sum.  Ass.  Evidence  in  an  action  on  an  attorney's  bill. 

1788;Gough 

cor.  Law- '  The  action  by  an  attorney  for  his  bill  differs  from  all  others 
rei.ce,  J  Sa-  on  contract,  in  this,  that  where  the  cause  of  action  is  for  business 
iso'i.  done  in  the  course  of  a  legal  jyoceeding,  it  is  necessary  by  the 

positive  directions  of  an  Act  of  Parliament,  that  the  plaintiff 
f,"^^°'^'*^'     should  deliver  a  bill,  signed  by  himself,  a  month  previous  to  the 

commencement  of  his  action.(^)     It  will  be  incumbent  on  him 

[q)  In  Pennsylvania,  an  action  cannot  l)e  supported  by  an  attorney,  or  counsellor 
at  law,  against  his  client,  for  advice  ami  services  in  the  trial  of  a  cause,  OTer  and 
above  the  attorni.j's  fees  allowed  by  Act  of  Assembly.  Moony  y.  Lloyd,  5  Serg.  & 
It.  Rep.  41'-'. 


PAROL  CONTRACTS. 


401 


therefore,  to  prove  this  fact  before  he  can  be  permitted  to  pro-  ci,.  ii.  s.  2. 
cecd  ;  and  to  enable  him  to  «lo  this,  he  should  either  produce  a  Action  on  an 

„,,.,,,,.  ,       ,  .  ,  ,        ,  .  ,p  ,  .       attorney's  bill. 

copy  of  the  bill  delivered,  also  signed  by  himselr,  or  else  give 

notice  to  the  defendant  to  produce  the  one  which  was  deliver- ,,x  yj^j^  ^^^ 
cd.(l)  It  must  also  be  proved  that  the  bill  was  left  with  the  de- 'leison  v. 
fendant,  or  at  his  place  of  abode,  for  the  mere  delivery  of  it  into  i^q  '  "   ' 
his  hands,  if  he  return  it  immediately,  is  not  sufficient,  though  (.')  Brooks  tj. 
he  promise  to  pay  the  money,(2)     So  it  was  ruled  by  Lord  El-  ^y,^'i^"\29o^' 
DON  at  Nisi  Prius,  that  a  delivery  at  tlie  counting-house  of  the  (3)  niiiv. 
defendant,  who  dwelt  elsewhere,  was  not  suflicient.(3)  But  if  two  Hu/nphieys, 
persons  employ  an  attorney,  and  one  ot  them  gives  all  directions  ^^v  pi„ehet 
and  orders  about  the  business,  a  delivery  to  the  person  so  acting t^'-  H'>w,2 
is  sufficient  to  charge  both,(4)  as  is  a  delivery  to  an  attorney  ap-/.!"!^j^'ggj.' 
pointed  by  the  defendant  to  succeed  the  plaintiff  in  the  conduct  r.  Si Hvmakei-, 

ofasuit.(5)  fs^Wintf/;. 

This  Act  of  Parliament  has  always  received  a  liberal  construe-  Payn^,  6  T. 
tion  in  favour  of  the  client.     If  any  part  of  the  bill  be  for  busi-  '^•t'-6«. 
ness  done  in  a  Court  of  Justice,  it  is  within  the  Statute;  the  p,, (.kit,  i 
charge  for  an  affidavit  of  debt,  engrossed  and  sworn,  though  no  '^"^  ^  P'*'- 

*  '        o  _  .         N.  R.  266. 

writ  was  actually  sued  out,(6)  or  for  a  dedimus  poteafafem,  in  a.,^-.  Q|„kpt,. 
bill  in  other  respects  entirely  for  conveyancingjCZ)  has  been  held  D  110^ 'n,  5  T. 
to  be  sufficient  for  this  purpose;  and  though   all  the  business  ,'^''''\.' 

If'  >?    _  ('J)  Collins  r. 

"Were  at  the  Quarter  Sesslons,(8)   or  on  obtaining  a  bankrupt's  NcUoison, 
certificate,(9^  or  the  attorney  charged  nothing  but  what  he  ac- '^,^^'"." '''"'■' 
tually  expended,!,  10)*  it  is  still  necessary  to  prove  the  bill  deli-  Towers, 
vered  before  he  can  maintain  his  action.     Btt  where  no  business  FJT,^'''^'® ^*^' 
has  been  done  in  Court,  as  where  an  affidavit  and  bond  to  the  ni)  Burton 
chancellor  were  prepared  with  a  view  to  a  commission  of  bank- ^-^ '^^I'^tterton, 
ruptcy,  but  the  affidavit  was  never  sworn  ;(1 1  ^  or  where  the  whole  Ijjr" 
of  the  demand  is  for  conveyancing,  it  is  not  necessary  to  deliver  (12)  Ford  v. 
any  bill ;  neither  is  it  necessary  where  the  action  is  brought  by  ^^  'gjj^  'j^gg 
one  attorney  against  another,  though  all  the  business  were  done  (13)  Bridges 
before  the  defendant  became  anattorney.(12)  So  where  an  agent  p^^,[^^^^'  j 
to  a  country  attorney  brings  an  action  against  his  principal  ;(13)(i4)  Griffith 
or  the  executor  or  administrator  of  an  attorney  brings  an  action '*,'^'"- "• 
for  business  done  by  the  deceased  ;(14)  it  is  not  necessary  for  the  c<)ok.'s  Cas. 

Prae.  58,  and 
Bui.  N.  P. 

Butif  a  clientgive  a  note  or  obligation,  it  is  lawful  for  counsel  to  accept  it,  and  in 
case  of  non-payment,  an  action  may  be  supported  ou  it.  ibid. — Am.  En. 

•  This  must  be  understood  where  the  whole  bill  is  for  business  in  some  manner 

r;onnected  with  the   plaintiff's  profession,  for  if  he  lay  out  a  sum  of  money  for  aiio- 

r,  merely  as  a  friend,  and  give  an  account  of  it  in  his  bill,  he  will  not  be  pre- 

uled  from  recovtring  that  as  money  paid  to  the  defendant's  use.  Mowbratj  v. 
Fleming;  1 1  East,  285. 

3  F 


402  ASSUMPSIT. 

Pail  II.  plaintiff,  in  either  of  these  cases,  to  prove  the  formal  delivery  of 
auormVs'bm.  ^  ^'"  according  to  the  Statute  ;  and  if  an  attorney  himself  be  de- 
fendant,  he  may  set  off:^  I)  his  demand  without  delivering  a  bill. 


(1)  Merlin  r  in  which  case,  however,  he  should  deliver  his  bill  time  enough  to 
W.n.ier  cited  enable  the  plaintifl'to  get  it  taxed  before  the  trial. 

Dougl.  19'J.  .....  °        ... 

Ihe  plaintin,  in  cases  within  the  Statute,  must  also  give  gene- 
ral evid^ce  of  the  business  having  been  done ;  and  prove  his 
retainer,  either  by  direct  evidence  of  that  fact,  or  at  least  by  the 
circumstance  of  the  defendant  from  time  to  time  appearing  as  a 
(i)  Williams  party,  and  giving  directions  about  the  cause.(2j(r)  The  quantum 
Dougl'igs  ^'  I'casonableness  of  the  bill  is  never  entered  mio  dit  Nisi  Priu'i ; 
but  if  the  defendant  mean  to  dispute  that,  he  must  obtain  an  or- 
der to  tax  the  bill  before  the  master.  Bills  for  conveyancing, 
and  other  business  not  within  the  Statute,  are  open  to  discussion 
at  Nisi  Prius  ;  and,  therefore,  in  these  cases  the  plaintiff'  must 
not  only  prove  his  retainer  and  the  business  done,  but  also  the 
reasonableness  of  the  charges. 


SECTION  TIT. 

Of  the  evidence  on  behalf  of  the  defendant,  and  the  plaintiff^ 
evidence  on  particular  pleas. 

On  the  General  Issue. 
Ch.  U.S.  3.  fj-jjj,  p]gas  to  which  the  defendant  is  entitled  in  this  action 
sideration.  are  as  various  as  the  different  transactions  of  mankind  ;  but 
many  things  which  were  formerly  pleaded,  may  now  be  taken 
advantage  of,  on  the  general  issue,  nan  assumpsit.  By  that  plea 
the  defendant  puts  the  plaintiff  on  proving  the  whole  of  his  case, 
and  entitles  himself  to  give  in  evidence  any  thing  which  shews 
that  no  debt  was  due  at  the  time  the  action  was  commenced, 
whether  on  account  of  the  promise  being  originally  void  for  the 
want  of  a  good  and  legal  consideration,  or  by  reason  of  the  de- 
mand having  been  since  satisfied.(s} 

(r)  In  an  action  \>y  an  yiloi  lU'V  for  his  costs,  although  the  original  retainer  need 
not  be  prov'-d,  yet  somr  rccogniiioii  of  the  aUornt  y  in  the  progress  of  the  suit,  ought 
to  be  shewn  to  make  the  party  liable  for  costs.  Jlotchkiss  v.  Le  Roy  et  al.  9  Johns. 
Hep.  142.— Am.  Ed. 

Illegal  contracts. 
(s)  In  J\fassachusetts,  the  rule  of  tnelio)'  est  conditio  defcndentis,  where  the  par- 


GENERAL  ISSUE. 


403 

If  the  plaintiff's  demand  be  compounded  of  skill  and  materials,  ch.  ii.  s.  3, 
and  he  has  arrossly  misconducted  himself,  as  where  an  anothe-  ^^""'  "'  •=""' 

°  ''  '  siileratlon. 


ties  are  equally  guiKy  or  eqmilly  innocent,  has  been  recognised.    Gates  etal.\.  JVins-  M'Mullcn, 
lo-w  et  al  1  jilim   Rep.  65.  P.  ,.ki's  N.'p. 

Wh-re  a  Sht  rift"  having  ii  in  his  power  to  arrest  it  person  foibi-ars  to  do  so  on  the  ^^" 

promise  of  iht-  defi  iidanl  in  writing  to  deliver  hiin  up,  who  receives  an  iiidciiinity 
for  such  promise,  Hud  the  person  is  not  ilelivt'red  uj)  agrteably  (o  proraisr,  it  is  n.  !d 
that  the  urtdert.-kiiig  is  \oid,  aii(l  the  Sheriff  Ciin  maintain  no  suit  ihenoii,  nor  lor 
the  money  paid  the  (Itlcndaut  as  an  indeirmity.  Drmiy  v.  Lincoin,  5  Muss.  Rep, 
385.   Churchill  v.  Perkins  et  al.  5  Bo.  541. 

At  coit.raoii  law,  i-vef^  security  givc.i.  tor  th*-  payment  ot  nioney,  tli<-  payment  of 
which  is  proliibittd  by  Statute,  is  void  asbilween  the  pHriies  to  it.  Farriir  adinr. 
V.  Barton  et  al.  ibid.  395.  Scidenbender  v.  Charles'  admrs.  4  Serg.  ^  /?.  Rep  159. 
Contiacts  in  restraint  of  Ira'l  and  husiiuss,  ;.re  in  gene.dl  void,  as  ^..^j-iiust  ijie  iio- 
licy  of  the  law.  Pierce  v.  Fuller,  8  JMuss.  Rep.  223.  Ferkiiis  et  al.  v.  Lyman,  9 
Bo.  52'2. 

A  sale  of  lands,  out  of  the  possession  of  the  v  ndor,  and  held  by  an  adverse  t'tle 
is  an  illegal  consideration,  and  will  not  support  an  action.  Whitaher  v.  Co/te  3 
Johns.  Cas.  58.     Belding  v.  Pitkin.  2  Caines''  Rep.  147. 

A  penalty  inflicted  by  Statute  upon  an  offence,  i  nplies  a  prohibition  of  it,  soas  to 
make  a  contract  relating  to  it  voi;i.  Mitchell  v.  Smith,  1  Hinn.  Rep.  110.  S.  C  4 
Yeates'  Rep.  84.  4  Ball.  Rep.  269 

All  actic.n  cannot  be  maintained  in  the  Courts  of  this  Stale,  on  a  contract  in  vio-  * 
lation  of  the  laws  of  th'-  United  States,  or  oi Pennsylvania.     Maybin  v.  C'mlun,  4 
Bull.  Rep.  298.    S.  C  4  Yeates'  Rep.  24.     Buncanson  v.  M  Cturc,  i  Ball.  Rep. 
.308.  Murgatroyd  v  M'Clnre,  ibid.  342.  Biddis  v  James,  6  Bimi.  Rep.  321,    ,S'«. 
dcnbender  v    Charles'  udmr.  4  Serg.  &  R.  Rep  159. 

In  Vermont,  an  action  will  not  lie  to  lecover  biick  money  paiil,  or  chattels  ad- 
vanced upon  a  contract  jna/z/Hi  i/t  se.    Barnard  \.  Crane,  I  7'yl  Rep.  io?. 

Ill  Connecticut,  a  note  givei  for  a  conside' ation  which  is  agamst  law  is  void. 
Ketchum  v.  Scnbner,  I  Root's  Rep.  95. 

So  in  an  action  oi' book  debt,  iif  Court  said  they  would  give  no  aid  to  any  parties 
in  an  illicit  transaction.     Lochtvood  v.  Knap,  ibid.  l.iS. 

Id  Aew  York,  it  was  brought  in  one  case  into  view,  but  not  decided  whether  their 
Courts  will  entertain  a  plea  that  a  contract  is  illegal  because  in  contravention  of  the 
royal  instructions  respecting  grants  ol  lands  to  patentees.'  Le  Roy  et  al.  v.  Servis  et 
al.  1  Jv'.  York  Cas.  in  Er.  iii. 

A  contract  with  a  branch  pilot  of  the  port  o(  J\/ew  York,  fur  a  certain  sura,  to  as- 
sist a  vessel  in  distress,  is  absolutely  void,  and  will  not  sustain  an  action.  Callngan 
et  al.  V.  Hallett  et  al.  I  Caines'  Rep.  104.  ' 

Ad  action  will  not  lie  upon  a  contract  to  pay  over  half  (lie  proceeds  of  an  illegal 
contract,  though  the  Tioney  arising  from  it  have  been  received  by  the  defendant. 
Belding  v.  Pitkin,  2  Caines'  Rep.  147. 

Selling  a  pretended  'itle  is  in  la*  maintenance,  an'\  both  paities  being  in  pari 
delicto,  a  Court  of  Equity  will  nut  relieve  either.  fVoodworth  et  al.v.  Janes  et  al, 
2  Johns.  Cas.  417 

Bui  it  seems  ihat  a  note  given  'or  a  pretmded  tillc,  is  not  void  in  the  hands  of  an 
endorsee.     Bake}- et  al  v  ./irnold,3  Caines'  Rep   279. 

A  promise  by  the  difendani  lo  pay  th'-  plaintiff  th^  costs  of  a  suit,  which  they  had 
settled  in  consult rat.on  that  the  plaintiff  would  not  oppose  his  dischaige  under  the 
insolvent  law,  i"  .11  n  d  and  void.     fVaite  v.  Harper,  2  ./o/m?.  Rep.  386. 
No  action  can  be  maintained  on  a  contract  made  for  the  sale  of  tickets  in  a  lottery 


404 


ASSUMPSIT. 


Part  II.      cary,  giving  medicines  on  his  own  judgment,  and  not  under  the 
directions  of  a  physician,  appears  to  have  been  grossly  negligent 


W:iiit  of  con 
sitlc-ialion. 


carried  on  contrary  to  law.  Hunt  et  al.v.  Kmckerbacker,  5  Johns.  Rep.  317-  P'i- 
mev  \ .JSP  Connell.  cited  fi  Binn.  Rep.  329.  Barton  v.  Hughes  efi  al.  2  Bro-uine's 
Rep.  is.  Seidenbender,\.  Charles''  admr.  li  Serg.^  R.  Rep.  151.  Nor  for  the 
amount  of  a  prize  drawn  to  a  ticket  puichased  after  the  time  limited  by  law  for  com- 
pleting the  saltjs.     Jiiddis  v.  James,  6  Binn.  Rep.  .521. 

But.  in  Virginia,  w  li-'re  a  transaction  between  a  d.'btor  and  his  creditor  is  intend- 
ed by  them  buili  to  ditfraiid  tlie  other  creditors  of  the  debtor.,  but  the  debtor  under 
all  the  circumstances  o(  ilie  case  is  not  so  Gulp  dile  as  the  creditor,  it  would  seem 
that  a  Court  of  Equity  ought  not  alto<jether  to  refuse  relief  to  the  debtor,  but  to  pro- 
portion the  rf-lief  granted  to  the  decree  of  criminality  in  both  parties,  so  as  on  the 
one  hand  to  avoid  the  encourageme.-it  of  fi-aud,  and  on  the  other  to  prevent  extor- 
tion and  oppri-ssiiin.     Austiri  v.  JVinston,  I  Hen.  &  JMtinf.  Rep.  .32. 

The  Com  ts  fif  the  United  Stoles  will  not  enforce  an  agreement  entered  into  in 
fraud  of  a  law  of  the  United  States,  though  that  agreement  were  made  between  per- 
sons «ho  were  ihen  eru-miis  ot  the  United  States,  and  the  olyect  of  agreement  a 
mere  stratagem  of  war.     Hannay  v.  Eve,  3  Crand's  Rep.  242. 

J\''udiim  pactum. 

In  Vermo7it,Pt  promissory  note,  deposited  with  arbitrators,  subject  to  their  en.^ 
dorsement  to  the  a'niouni  ot  their  awai  d,  is  void  for  want  of  consideration.  Drake 
y.  Collins,  1  Tyl  Rep.  79. 

If  a  credit  given  bt-  voluntary  subsequent  to  and  forming  no  part  of  the  original 
contract,  it  mwy  be  retracted.     Fis/ier  v.  Brown,  ibid.  .3S7. 

Forbearance  is  a  good  consideration  of  a  promise  to  bind  the  promiser  in  a  note 
to  pay  the  assignee,  notwithstanding  a  discharge  from  the  promisee  who  is  a  bank- 
rupt.    Tutile  V.  Bigelow,  1  Root\t  Hep.  108. 

An  off-set,  which  is  compellable  only  in  Chancery,  is  good  consideration  of  an 
agreement  to  pay  interest.      Pimderson  v.  Fanning,  ibid.  193. 

A  ivritten  contract  without  a  i-onsideratinn  is  not  valid.  Hosmerv.  Hollenbeck,  2 
Day's  Rep  '2'1. 

In  an  action  of  assumpsit  on  mutual  promises,  they  must  be  laid  in  the  declaration 
as  concurrent  :  and  if  slatrd  to  be  "  afterwards,  to  -wit,  on  the  same  day,''  it  is  bad, 
and  the  promise  a  nudum  pactum,  Livingston  v.  Rogers,  1  Caines'  Rep.  583. 
Coh-mav  &  Caines'  Cas  331.     Hicks  v.  Burhans  et  al.  10  Johns.  Rep.  243. 

The  w ithdiawal  of  a  note,  from  the  Bank,  deposited  there  for  collection,  is  a 
sufficient  consideration  to  support  an  assumpsit  against  a  third  person,  even  though 
the  note  be  afterwards  protested  fornon-payment.  Stewart y.  Ede7i, 2  Caines' Rep. 
150 

A  parol  gift  is  not  binding  until  delivery  of  possession  be  given.  JVoble  v.  Smith 
et  al.  2  Johns.  Rep.  52.  S.  P,  Pearson  v.  Pearson,  7  Johns.  Rep.  26.  Grangiac 
v.Arden,  10 /)o.  293. 

A  promise  by  a  constable  to  a  defendant,  against  whom  he  has  an  execution,  that 
if  the  defendant  will  deliver  property  as  security,  he  will  not  sell  it  under  thirty  days, 
is  void,  having  no  consideration.     Goodale  v.  Holridge,  2  Johns.  Rep.  193. 

A  promise  to  pay  damages  for  the  detention  of  a  certain  sum  of  money  beyond  the 
amount  detained,  is  a  nudum  pactum.     P/ietteplace  v.  Steere,  ibid.  442 

If  the  consideration  on  which  a  promise  is  founded,  be  neither  for  the  benefit  of 
the  defendant,  nor  the  trouble  nor  prejudice  of  the  plaintiff,  it  is  without  considera- 
tion.   Powell  T.  Jiroion,  3  Johns.  Rep.  100,    MiUer  v.  Drake,  1  Caines'  Rep.  45. 


GENERAL  ISSUE. 


405 


or  ignorant,  this  fact  furnishes  a  defence  on  the  general  issue.  Cli.  Ti.  8.  2. 
So  in  the  case  before  alluded  to,  if  a  portrait  be  not  a  likeness,  ^^'^V'  "'  '^""' 


Where,  on  a  return  of  non  est  inventus  on  the  ca,  sa.  against  the  principal  in  a 
suit,  the  bail  gave  a  note  tor  the  amount  ot  the  judgment,  whicli  was  afterwards  re- 
versed on  a  writ  of  error,  it  was  held  as  the  bail  was  not  fixed  and  the  judgment  re- 
versed there  was  no  consideration  for  the  note,  and  the  plaintiff  was  not  entitled  to 
recover  on  the  same.     'I'appen  v.  Van  JVagenen,  3  Johns.  Rep.  45S. 

Where  A.  and  B.  were  joint  owners  of  a  vessel,  and  A.  voluntarily  uridertook  to 
get  the  vessel  insured,  but  neglected  to  do  so,  it  was  held  no  action  would  lie  forthe 
non-performance  of  his  promise,  though  B.  sustained  a  damage  by  the  noMfeasance, 
there  being  no  consideration  for  the  promise  ;  aUter,  if  a  factor  or  agent  who  would 
be  entitli'd  to  a  commission.     Thome  et  al.  v.  Deas,  4  Johns.  Rep.  84. 

In  an  action  on  a  written  agreement  to  give  the  plaintiff  the  refusal  of  a  farm,  it 
vas  held  necessary  to  shew  a  consideration  for  the  promise.  Burnet  v.  Bisco,  ibid. 
235. 

A  sufficient  consideration  is  necessary  in  a  written  agreement  as  if  it  remained  in 
parol,  ibid.  S.  P    The  People  v.  Howell,  ibid.  '296. 

A  forbf'arance  to  sue,  genei'ally  is  a  good  consideration  for  a  promise  to  pay  the 
debt  of  another.     Jilting  et  al.  v.  Vanderlyn,  ibid.  237. 

Provided  he  has  a  legal  cause  of  action.   Hamoker  v.  Eberley,  2  Binn.  Rep.  .509. 

If  a  father  holds  the  legal  title  of  land  in  trust  for  his  son,  and  they  agree  to  sell 
the  land, and  the  father  receives  th'-  purchase'  monev,  and  promises  to  pay  the  debts 
of  his  son,  a  creditor  of  the  son  who  had  previously  obtained  judgment  against  the 
son,  and  levied  on  the  land,  may  sustain  assumpsit  for  money  had  and  received 
against  the  father.     Fleming  v.  Alter,  7  Serg.  ^  R.  Rep.  295. 

Payment  of  part  oi  a  debt  bv  a  debtor  is  not  a  considrratiou  which  will  support  a 
promise  to  forbear  to  sue.     Pabodie  v.  King,  12  Johns.  Rep.  426. 

In  an  action  brought  agninst  one  for  the  guaranty  of  the  performance  of  an  agree- 
ment by  another,  the  declaration  must  state  a  snfficii'nt  consideration  for  the  gua- 
ranty.    Bailey  et  al.  v.  Freeman,  4  Jo/ms.  Rep   280. 

The  plaintiff  entered  on  the  land  of  the  defendant,  without  his  knowledge  or  au- 
thority, cleared  it  and  improved  it ;  the  defendant  agreed  with  the  plaintiff,  against 
■whom  he  had  brought  an  ejectment,  that  he  would  sell  the  plaintiffthe  land  as  wild 
\&nd, or  pay  him  for  the  improTements  ;  such  a  promise  to  pay  for  the  improvements 
•was  a  Tindiim  pactum,  on  which  no  action  could  be  maintained,  there  being  in  the 
owner,  neither  a  legal  nor  a  moral  obligation  to  pay  for  the  same.  Frear  v.  Har- 
denJberg,  5  Johns.  Rep.  272. 

Where  two  persons  made  an  agreement  at  an  auction  not  to  bid  against  each 
Other,  but  that  A.  one  of  them  should  buy  and  divide  the  articles  between  them  ; 
he  made  the  purchase,  but  refused  to  divide,  and  on  an  action  beinu  brought  against 
^.  the  agrnemint  was  held  lo  be  void,  without  coi  sideration,  and  against  public  po- 
licy.    Doolin  V.  Ward,  6  Johns.  Rep.  194.     Wilbur  v.  //ow,  8  Johns.  Rep.  346. 

Whnre  the  promise  of  one  paity  is  the  consideration  of  the  promise  of  the  otheiT, 
the  promises  must  be  concurrent  and  obligatory  on  both  parties  at  the  same  time. 
Tucker  \.  Woods,  11  Johns   Rep.  190 

A  moral  or  equitable  obligation  is  a  sufficient  consideration  for  an  assumpsit, 
Clark  et  al  v.  Herring,  5  Binn    Rep.  33. 

Qitere.  Whi  tber  in,  an  in;plied  assumpsit.  Overseers  of  Tioga  v.  Overseers  of 
Seneca,  13  Johns.  Rett.  3S0. 

A  mere  promise  by  the  d  findant  to  the  plainiifF,  to  r>»y  him  a  sum  due  by  the 
son  of  the  ilefendant,  was  lu-ld  lo  be  vdid  for  want  ofriinsiiieiation.  Pease  v.  Alex- 
ander, 7  Johns.  Rep.  25.  S.  P.  Pearson  v.  Pearson,  ibid.  20. 


406  ASSUMPSIT. 

Part  11.     the  failure  of  skill  takes  away  all  title  to  payment.(l)     But,  in 
sideration°"  S^'^^'"^''  ^^^^  circumstatice  of  work  or  materials  not  being  so  good 


(1)  Grlnialdi  The  Hcbl  ot  a  p.  rsou,  tliscliargt-d  undt-r  tli^-  insolveiil  Act,  is  due  in  conscience, 
T.  \\  liiu  .  4  and  is  t  ^iifTicit-nt  ciiisidcration  for  a  new  promise  to  pay  the  debt.  Scouton  v.  Eis- 
Esp.  Cas.  95.  land,  ibid.  36      Maxim  v.  Morse,  8  Mass.  R-p.  VLT . 

Where  a  promist  is  lai<).  to  lie  toundrd  on  ^  past  consideration,  it  must  be  stati-d 
to  havf  been  done  on  the  request  ol  ib'.-  party  promising,  or  at  least  it  must  appeir 
that  he  was  'indera  7nora/ obligHljon  to  do  or  procure  the  act  to  be  done.  Corn- 
stock  V.  Smith,  7  Johns.  Rep.  87. 

A  past  considi  ration  beneficial  to  ihe  detendant,  to  which  he  afterwards  assents, 
is  sufficient  to  siipj)ort  an  acli-n.     Tioty  v.  IVihon,  14  Do  378. 

If  a  consideration  be  ill'^al,  it  will  not  support  an  assumpsit,  Coventry  y.  Bar- 
ton, 17  Johns.  Rep.  142.     El  vide  Fales  v.  Mayherry,  2  Ga'Us.  Rep.  560. 

11  a  person  throu;>h  a  mis-apprelsension  ot'  the  law  promise  to  pay  money,  from 
the  payineni  of  v/hicli  h<  is  ijischaiged  by  law,  or  acknowledge  hims^-lf  under  an 
obligation  which  the  law  will  not  impose  on  him,  he  sh-dl  not  be  bound  by  such 
acknowledgment  orprO'  lise.  Warder  et  al.  v.  Tucker,  7  Mass.  R'p.  449.  Free- 
man et  ul  V.  Boynton,ibid  483.  Pearson  v.  Lord,  6  Do.  SI.  May  v.  Coffin,  4 
Z>o.  341.  Gnrldiid^  The  S»lem  Bank,9  Do.  408.  Vide  Zei;i^  v.  U.  States  Bank, 
4  Datl.  Rep .  '234    .S'   C  I  Binn  Rep  27. 

Where  one  at  tiie  dirj'ction  of  another,  as  his  servant,  entered  a  field  upon  a  pro- 
mise of  indemnity  ;  such  a  promise  was  held  to  be  grounded  on  a  sufficient  conside- 
ration. Allaire  v.  Oulund,  2  Johns.  Cas.  52.  Sed  vide  Coventry  v.  Barton,  17 
Johns   Rep.  142. 

There  must  be  some  collateral  matter,  some  injury  to  the  plaintiff",  or  benefit  to 
the  defendant,  in  the  consideration  laid  as  the  ground  of  the  assumpsit.  Waters  v. 
Millar,  1  Ball.  Rep.  369. 

If  two  per.sons  claim  a  tract  of  land  bv  different  titles,  and  one  purchase  from  the 
other,  without  fraud,  the  settlement  of  the  dispute,  is  a  good  consideration  to  sup- 
port the  cont-act,  though  the  title  purchased  be  bad.  Cavode  et  al.  v.  JU'Kelvey, 
Addis.  Rep.  56. 

A  promise,  by  the  defendant,  to  the  plaintiff,  to  give  the  plaintifTa  marriage  por- 
tion, if  he  would  marry  defendant's  niece,  is  founded  on  a  good  consideration,  and 
valid.     Barr\.  Hill,  ibid. '276. 

The  smallest  spark  of  benefit  or  accommodation,  will  be  sufficient  to  create  a  va- 
lid consideration  for  a  promise.    Austyn  v.  M'Lure,  4  Dull.  Rep.  226. 

An  agreement  by  a  surety  to  forbear  a  suit  against  his  principal,  after  he  shall 
have  paid  the  debt  of  his  principal,  is  a  good  consideration  to  support  a  promise 
though  at  the  time  of  the  agreement,  the  surety  had  no  cause  of  action  against  his 
principal.  Hamaker  v.  Eberley,  2  Binn.  Rep.  506.  Johnes  v.  Potter,  5  Ser£'  &  R. 
Rep.  519 

Taking  and  surrendering  a  person  on  a  bail  piece,  for  whom  the  plaintiff  was 
bail,  in  couserjuence  of  which  the  defendant  also  surrendered  him  in  a  suit  in  which 
he  was  bail,  is  a  good  consiileralion  to  support  a  promise  by  the  defendant  after  the 
surrender,  to  pay  a  proportion  of  the  e.xpense  attending  it.  Greeves  v.  M'  Callister, 
1  Browne's  Rep   lfJ9.   .S'.  C.  2  Binn.  Rfp.  591  . 

Where  the  <leftndant  requested  A.  to  pay  money  to  B.  for  the  use  of  the  defen- 
dant, out  of  money  of  the  plaintift",  or  of  others  which  was  expected  to  be  in  his 
hands,  and  A.  did  pay  the  money  of  the  plaintiff  accordingly,  the  law  raises  an  as- 
sumpsit.    Brown  V.  Campbell,  1  Serg.  SJ  R   Rfp.  176. 

W^herever  a  consideration,  which  i?  the  foundation  of  a  promise,  produces  benefit 
to  the  one  party,  or  injury  to  the  other,  it  will  be  sufficient  to  support  an  assumpsit. 
Carrv.  Gooch,  1  JVash.  Rep.  335.  Vide  Field's  exr,  v.  Spotstvood,  ibid.  362. 
Scott's  exr.  v.  Osboms's  exr.  2  Mumf.  Rep.  413. 


GENERAL  ISSUE.  ^Qy 

as  contracted  for  by  the  plaintiff,  where  the  defendant  has  re-  Ch  ii.  s.  3. 
ceived  some  benefit,  does  not  furnish  any  defence  to  the  action ;  ^i*,^'^',");^*^""" 


A  declaration,  stating  that  the  defendant  undertook  to  conduct  a  suit,  and  mis- 
inanaged  it,  implies  that  he  was  tln-refoif  to  receive  a  compensation,  and  it  is  not 
competent  to  him  (o  avtr  a  want  ofconsideiaiion.  Stephens  v.  White,  £  Wash.  Rep. 
260. 

An  executor  writes  to  his  teslatoi's  creditor,  that  as  soon  as  he  can  dispose  of  his 
crops,  he  will  pa\  the  cl^im,  or  will  lei  limi  have  any  property  in  his  possession,  at 
a  fair  valuation,  this  promise  will  not  hind  the  executor  in  his  own  right,  without  an 
averment  of  assets,  a  forbearani-«  to  sue  or  some  other  consideration.  Taliaferro  v. 
Robb,  '2  CulPs  Rep.  258. 

If  the  appellant  piomise  the  appellee,  that  if  the  latter  will  agree  to  have  the  ap- 
peal dismissed,  the  appellant  will  p^y  him  ihe  full  amount  of  the  debt,  damages  and 
costs  then  due  on  the  appeal,  and  th(  appellee  consents  thereto,  it  will  he  a  suffi- 
cient consideration  for  a  promise,  on  which  to  tound  an  action.  Spottsxcoud  v .  Pen- 
dleton, ibid  209. 

A  note  in  writing,  to  pay  the  debts  of  another,  without  a  consideration  is  void. 
Chandler  v.  JVe«fe,  2  Hen.  &  Munf.  Rep.  124. 

A  paid  promise,  by  a  father  to  his  daiightei  's  husband,  before  the  marriage,  is  a 
si'fFicieiit  consideration  to  sustain  a  written  agreement,  made  after  the  marriagt ,  if 
such  written  agreement  be  otherwise  sufficient.  Argenbright  v.  Campbell  et  ux.  .'3 
Hen.  &Jl'lunf.  R:p.\U. 

A  general  acceptance  of  an  order,  binds  the  acceptor  to  the  payee,  by  whom  the 
Same  was  taken,  for  a  io/ia^^f/f"  consideration  ;  nntwithsiandmg  the  consideration 
which  induced  the  ace  -ptance,  afterwanls  ftils  wiiliout  any  fault  on  the  part  of  the 
payee.  Carbines  admr.  v.  Soiithgate,  ibid.  319.  Vide  1  CrundCs  Rep.  443,  ap- 
pendix. 

A  letter  from  the  defendant,  to  a  third  person,  saying,  they  would  be  his  sure- 
ties for  130  barrels  of  corn,  payable  in  12  months,  will  maintain  an  action  of  as- 
sumpsit  n^z'm^t  the  defendants  by  any  pet  sot,,  who,  on  the  taith  of  that  letter,  shall 
have  given  credit  to  the  third  person.     La~vrason  v.  J\Iaso7i,S  Do.  492. 

A  promise  by  a  merchant's  factor,  that  he  wouM  write  to  liis  principal  to  get  in- 
surance done,  does  not  bind  the  princi|)al  to  insure    Randolph  v.  Ware,  ibid.  503. 

A  jiromise  by  an  attorney  to  liis  client,  if  the  client  were  non-suited,  he,  the  at- 
torney would  pay  the  costs,  is,  witliont  consideration,  and  void.  JMitch^llv.  Bell, 
Rep.  in  Co.  of  Covf  17.   Tayl.  Rep.  61. 

An  executor  is  under  a  moral  obligation  topav,  when  he  has  assets,  and  if  he  pro- 
mise, in  consideration  of  forbearance  to  pay,  he  will  be  bound  though  there  be  no 
assets.     JU'JVeilv.  Quince, '2  Hay w.  Rep  153. 

In  an  action  ai assnmpsil,  the  declaration  must  sft  forth  a  sufficient  considt-ration, 
and  a  promise  to  pay,  or  it  is  fatal,  and  not  cured  by  the  Statute  of  Jeofails.  Bruner 
V.  Stout,  Hardin.  Rep.  252. 

As  to  ;h';  force  of  a  voluntary  promise  of  emancipation  to  a  slave,  by  his  master. 
Vide  Beall  v.  Joseph,  ibid.  51 . 

So  a  note  given  for  a  consideration,  which  has  failed,  cannot  be  enforced.  Broiuii 
v.  Fort,  Ma' tin's  Orl.  T    R.  34. 

But  a  Covenant  of  itself  imports  a  consideration.  Livingston  v.  Tremper,  4 
Johns.  Rep.  416. 

Qiiere,  In  an  sssignment  of  a  leasehold  interest  under  seal,  is  any  consideration 
necessary.     Shephard\.  IJttle,  14  Do. '210. 

Where  the  defendant  has,  without  objection  at  the  time,  accepted  arlici  s  ma- 
nufijclured  for  him,  he  is  not  enlitleil,  in  an  act'on  brought  ag  insi  bim  for  the  price 
of  the  ai  ticks,  to  shew  in  evidence  that  the  workmanship  was  bad  ;  but  his  remedy 


408  ASSUMPSIT. 

Part  II.      but  the  defendant  must  seek  his  remedy  by  a  cross  action  against 
^IXmioT' tlie  plaintiff' for  not  fulfilling  his  contract.* 


would  be  liy  a  special  action  on  the  case  for  fraud  and  deceit  in  the  workmanship. 
Everett  v.  Gray  et  ul.  1  Mass.  Rep.  101. 

If  a  Iradesman,  having  contracted  to  perform  a  certain  undertaking,  voluntarily 
Itaves  it  unfinished,  he  can  have  no  action  against  his  employer  for  the  part  per- 
formed. Faxon  V.  Mansfield  et  aL2Mass.  Hep.  1*7. 

But  if  the  defendants  agreed  to  build  a  vessel  by  a  certain  time,  and  the  plaintiffs 
to  find  iron,  if  the  iron  be  not  provided  in  time,  the  defendants  are  excused  fronii 
not  completing  it  in  time.     Bulkleij  v.  Jirainard,  2  RooVs  Rep.  5. 

In  an  action  for  goods  sold  and  delivered,  the  defendant  cannot  give  evidence,  by 
way  of  set  off,  that  certain  goods,  which  had  been  bought  by  the  defendant,  and 
consigned  by  the  vendor  to  the  plaintiff,  for  the  defendant  were  detained  by  the 
plaintiff,  and  consigned  by  him  to  other  persons.  Gogel  v.  Jacoby,  5  Serg.  &  R. 
Rep   117. 

But  the  defendant  may  give  evidence  of  acts  of  malfeasance  or  non  feasance,  by 
the  plaintiff,  and  immediately  connected -with  theplaintiff's  cause  of  action,  such  evi- 
dence not  being  admitted  by  way  of  defalcation,  but  for  the  purpose  of  defeating  in 
whole,  or  in  part,  the  plaintiff's  cause  of  action,  ibid. 

The  parties  are  entitled  to  rescind  a  contract,  only  in  the  event  of  a  total  depar-* 
ture  from  it.     Phillips  v.  Bruce,  1  ^^nth.  JV.  P.  C'as.  65. 

Inadequate  performance  may  be  given  in  evidence  upon  an  executory,  but  not 
upon  an  executed  contr&ct.  ibid. 

A  contract  may  be  avoided  by  the  representatives  of  a  party  thereto,  on  the  ground 
of  his  having  been  drunk  when  it  was  made,  though  such  drunkenness  was  not  occa- 
sioned by  the  procurement  of  the  other  party.  JVigglesivortli  v.  Steers,  1  Ren.  & 
Miinf.  Rep.  70. 

A  Court  of  Equity  will  annul  a  contract  which  the  defendant  has  failed  to  per- 
form, anil  cannot  perform  on  his  part.  Shillern's  exrs.  v.  May's  exrs.  4  CrancWs 
Rep.  137. 

In  an  action  of  ass2»H/iS27,  under  the  general  issue,  duress,  fraud,  and  imposition 
may  be  given  in  evidence  under  the  general  issue.  Candy  v.  Tivicliel,  2  Root's 
Rep.  123. 

But  under  such  a  plea  to  an  express  promise,  neither  performance  nor  any  act  ot 
the  plaintiff  can  be  given  in  evidence.   Uement  v.  Peck,  ibid.  494. 

In  this  action,  if  usury  be  specially  pleaded,  and  the  Court  reject  the  evidence 
offered  under  such  special  plea,  it  may  be  admitted  upon  the  general  plea.  Levy  v. 
Gudsby,  3  Cranch's  Rep.  180.  Vide  Wijcoff  \ .  Longhead,-!  Ball.  Rep. 92. 

In  assumpsit  for  the  amount  of  a  note  givt-n  for  the  price  of  land,  defect  of  title 
or  of  the  quantity  of  land,  may  be  given  in  evidence  in  avoidance  of  the  note.  Sum- 
ter V.  Welsh,  2  Buy's  Rep  558.— A-w  Ed. 

•.The  practice  of  different  Judges  on  this  subject  has  not  been  by  any  means  uni- 
form. Lord  M\NSFiF.i.n  is  said  to  have  h>ld,  that  in  no  case  could  the  improper 
performance  of  the  work  he  made  the  sul»jfct  of  inquiry  in  an  action  for  the  perform- 
ance of  it;  and  Mr.  J.  Bclleu,  in  a  case  of  Broom  v.  Davis,  Taunt.  Lent.  Ass. 
1794  determined,  iliat  where  a  booth  had  been  built  for  a  stipulated  price,  the  ill 
construction  of  it  afforded  no  defence  to  an  action  for  work  and  labour.  In  the  case 
of  Grimaldi  v.  IVMte,  above  menlioned,  where  the  defendant  had  it  in  his  power  to 
return  the  portrait.  Lord  Kr.NroN  h<'lil  the  same  doctrine  .-  but  in  that  of  Kannen  y. 
M' Mullen,  and  in  several  others  cited  in  7  East,  480,  his  Lordship  held,  that  where, 
from  the  improper  conduct  of  the  plaintiff,  the  defendant  had  received  no  benefit,  ic 
afforded  a  deft  nee  to  the  action.  In  another  case  of  King  v.  Boston,  Midd.  Site, 
after  East,  1789,  Lord  Kenyon  held,  that  where  a  horse  was  sold  fot^  twel?e  gui- 


GENERAL  IS«UE.  ^q« 

The  most  simple  defence  to  a  demand  established  by  the  plain-  c^  II.  s.  3. 
tiff  is  to  shew  that  it  has  been  satisfied  ;  the  proctf  of  which  lies     Payment, 
•wholly  on  the  defendant.     This  may  be  done  either  by  payment  ■  ■      - 

of  money,  or  by  the  delivery  of  some  other  thing  in  satisfaction 
of  the  debt.  In  the  last  case,  the  defen«'  nt  must  prove  the 
agreement  of  the  plaintiff  to  accept  the  thing  in  satisfaction,  and 
that  it  was  so  delivered  by  the  defendant,  and  accepted  by  the 
plaintiff.  In  answer  to  this,  it  will  be  open  to  the  plaintiff  to 
prove,  on  his  part,  that  the  thing  delivered  was  not  intended  to 
be  a  complete  satisfaction,  but  only  a  partial  payment.(0  Where 

neas,  and  warranted  sound,  and  the  defendant  had  paid  thi-f-e,  th^  defendant  in  an 
action  for  the  price  of  the  horse,  might  piove  the  unsoundness,  and  that  a  guinea  and 
a  half  was  the  full  value  of  it.  The  cases  on  the  subject  weie  all  (cxnept  ihat  last 
cited  in  this  note)  brought  before  the  Court  in  a  late  case  of  Bastenv.  Butter,  7 
East,  479,  Tnn.  46  Geo.  3,  where  the  plaintifT,  a  carpenter,  havii-.g  contrficted  to 
make  some  buildings  on  the  defendant's  farm  (the  defendant  findin;;  timb.r)  per- 
formed the  work  so  badly  that  it  fell  down,  and  the  Court  d.terminefl  that  this  fact 
might  be  given  in  evidence  on  the  quantum  memit,  though  no  notice  had  been  given 
to  the  plaintiff  of  such  a  defence.  And  Lawrkncf  and  Le  Blan"c,  Justices,  inti- 
mated an  opinion,  that  even  in  cases  where  the  plainiift"  stipulated  fora  certain  price 
if  the  defendant  gave  previous  notice  of  such  his  <lefenee,  he  might  be  permitied  to 
shew  that  the  plaintiff  had  not  entitled  himself  to  tbat  price,  by  perfn-niing  the 
■work  according  to  his  agreement.  The  Common  Pleas,  however,  in  Hilary  Ternx 
preceding,  held  that  the  negligence  of  an  attorney,  in  not  opposing  the  justification 
of  bail,  could  not  be  made  the  ground  of  defence  to  an  action  on  hii  bill.  I;i  that 
case  the  Chief  Justice  said  he  would  not  go  the  length  of  saying,  that  in  no  case 
could  negligence  in  the  party  suing  be  used  as  a  defence  to  the  action,  though  he 
thought  it  could  only  be  used  where  the  negligence  had  been  such,  that  the  pnrty 
for  whom  the  work  was  done,  had  thereby  lost  all  possibilit>  of  benefit  from  such 
work  ;  but  that  was  not  the  case  there,  since  a  jugdinent  had  been  obtained,  and  its 
fruils  might  thereafter  be  had  by  the  defendant.  Mr.  J  Rooke  a|>peai'S  also  to 
have  taken  the  distinction  between  the  case  of  a  parti:,l  benefit  and  none  at  all  beine 
rendered  to  the  defendant ;  but  the  other  Judges  (Hk\th  ami  Chambhi  )  seem  to 
have  been  of  opinion  that  no  degree  of  negligence  could  furnish  a  dtfence,  but  that 
it  must  be  made  the  subject  of  a  cross  action.  Tempter  v.  jWLachlan,  2  Bos  SJ 
Pul  JV*.  Jt  136.  Vide  Fam/rwurth  v.  Gurrand,  Campb.  J\r.  P.  38.  Fisher  .'.  Sa- 
muda,  ibid.  190.  In  the  first  of  which  Lord  ELtENBoHouoH  held,  thata  man  being 
employed  to  build  a  wall,  and  having  built  it  so  inartificially  that  it  was  'biigeil  to 
be  taken  down,  was  not  entitled  to  recoxer  any  tbn-.g  i-r  tiis  work  ;  but  iha'  if  the 
■wall,  as  it  then  stood,  might  be  taken  d'.w  i  and  re-bunt  with  ihe  sani  m.<t.  rials  at 
less  expense  than  it  could  without  1;!i(  in,  the  plainuf^"  Wii<> ''it'll- d  to  rtcnver  Oro 
tanto.  And  in  Lewis  v.  Cosgrave,  2  Taiint.  2,  it  was  hokb  n,  th,ii  in  an  action  oa 
a  banker's  chick  given  as  t hi  price  of  a  horse,  ■which  the  plaintiff  knowing  to  be 
unsound  had  warranted  sound,  the  di  fend^nt  haung  tendered  b:ick  the  horse,  might 
make  the  breach  of  warranty  a  detence  to  the  a'-'li-m. 

(<)  In  an  action  on  a  note,  under  the  plea  of  payment,  accord  and  satisfaction  can- 
not be  given  m  evi<lence.     Church  v.  Rhodes,  1  Root's  lir-p.  141. 

A  note  IS  not  an  exfiigni'^lnTieiit  or  ps.y  ment  of  a  pteci  i  nt  debt,  unles.f  there  be 
an  express  agreemeni  to  a<;p  -pt  it  m  ay-ient.  and  lo  ink'  the  risk  ol  ilie  soi\.  ncy 
of  the  maker.    Tobey  v.  Barber,  5  Johns.  Rep.  68.    Murray  v.  Governeur  ei  al.^2 

3G 


410  ASSUMPSIT. 

Fait.  IT.     the  payment  is  in  money,  after  the  Hay  of  payment  is  past,  no 

''^'"^"       such  question  can  arise,  for  the  payment  of  a  less  sum,  after  the 

^    ,      „       promise  is  broken,  can  never  be  set  upas  a  discharge  of  a  greater. 

Filch  T'.  Sul*  o  o  ' 

ton,  5  East,    though  accepted  by  the  creditor  as  such,  unless  he  execute  a 
230.  formal  release   under  seal.     In  this  case,  therefore,  only  twd 

questions  can  arise  ; 

1st.  The  fact  of  payment. 
2d.  The  application  of  the  money  paid. 

The  fact  of  payment,  if  made  to  the  plaintiff  in  person,  and  a 
receipt  on  a  proper  stamp  were  given,  is  proved  by  evidence  ot 
the  plaintitT''s  hand  writing  :  in  other  cases  it  is  generally  proved 
by  the  testimony  of  some  person  who  was  present  when  the  mo- 
ney was  paid.  But  the  fact  of  payment  may  be  presumed  from 
circumstances  without  any  direct  proof.  Mere  length  of  time 
(1)  Ante,  47.  will,  as  we  have  before  observed,(l)  afford  in  many  cases  a  pre- 
sumption of  payment;  and  on  a  similar  principle  Lord  Kenyon 
held,  that  proof  of  the  plaintiff  and  other  workmen  having  come 

Johns   Cas.  438.     Herring  v   Sanger,  3  Do.  71.     Schermerhorn  et  al.  v.  Loines  et 
al.  7  John^.  R  p.  31 1 .     Jo/mson  v.  Weed  et  al.  9  Do.  310. 

A^ide  Kiddie  \.  Debrutz,  1  Humu.  i?e/^  420. 

But  th^  acceptance  of  a  nejjotiabh'  iioie,  on  account  of  a  prior  debl,  is  prima  facie. 
evidence  of  satisfsction  ;  and  ih<-  idaintifT  cannot  recover  on  the  old  debt  without 
shewing  the  not'  to  have  been  lost,  or  prodncing  and  cancelling  it  at  the  trial. 
Holmes  et  al  v.  D''Camp.  I  Johns.  Rep.  34.     Pintardy.  Tackington,  10  Do.  104. 

Id  Pen7isylvania,  th<-re  being  no  Court  of  Chancery,  in  order  to  prevent  the  fail- 
ure of  justice,  the  'lefe'idani  in  an  action  on  a  bond,  under  the  plea  of  payment, 
may  prove  mistake  or  want  of  consideration.  S'ivift  v.  Harvkins  el  al.  1  Dall. 
Sep  17. 

In  a  scire  facias  per  mortgage,  he  mas  shew  an  eviction  by  title,  paramount  to  the 
plainiifTs.  Steinhane''  v.  Jl'hitman,  1  Serg.  &  R.  Rep.  438.    Hart  v.  The  exrs.  of 
Panter,  5  Do.  201. 
,  And  under  the  |)lea  of  payment  with  notice,  yra?/c/  f-ither  in  the  execution  or  con- 

sideration of  a  bond,  may  be  given  in  evidence,  and  th-  plea  of"layinan,  imletiered, 
tfc"  is  not  necessary.     Baring  v.  Shippen^'-Z  Binn.  Rep.  154. 

The  rule  of  the  Pennsylvania  law  has  been  adopted  in  Circuit  Court,  that  under 
the  plea  of  payment  with  leavt-,  evidence  may  be  given,  which  shews  th^t  ex  xquo 
et  bono,  the  pldiniiff  ought  not  to  recover.  Latapee  v.  Pecholier,  April,  1808,  M. 
S.  Rep. 

In  df-bt  on  bond,  the  receipt  of  a  sum  smaller  than  the  amount  of  the  condition, 
and  an  acknowh  dgment  of  full  .saiisi':<ctinn,  are  goad  evidence  under  a  plea  of  pay- 
inenl.     Hendersmi  v.  Moore,  5  Crunch's  Rep.  11. 

Under  the  plea  of  payment  in  assumpsit,  a  set-off  cannot  be  given  in  evidence. 
Evans  v.  J\'orris  ibid.  411. 

A  bond  will  be  -I'-emed  an  extinguishment  or  payment  of  a  prior  simple  contract. 
The  State  v.  Gordon,  1  Buy's  Rep.  491. 

Whei*  keeping  a  note  an  unriasouable  length  of  time  will  be  presumed  payment. 
Pons'  exrs.  v.  Kelly,  2  Haytv   Rep   45      Ante,  302,  n.  (o) 

Two  persons  w.-  e  joint  owners  ol  a  hogsh  ad  of  rum,  and  the  Sheriff,  by  virtue 
of  an  execution  a.'ai''''t  07ie  of  tlieu.  ->:iz  d  ih-  run)  and  sold  the  whole  to  the  de- 
fendant ;  in  an  action  of  trover,  brought  by  the  o^Aer  joint  owner,  it  was  held,  that  a 


GENERAL  ISSUE.  q,j^j^ 

regularly  to  receive  their  wages  from   the  defendant  at  stated  Ch.ll.  s.  3. 
times,  and  the  plaintift'  never  having  been  heard   to  complain    P")'"'^"':' 
that  he  had  not  been  paid,(l)  was  presumptive  evidence  of  pay-    — — — — 
ment  in  an  action  brought  at  a  distant  time  afterwards.     If  the  \,ivnsi'iie'nski 
money  be  paid  to  a  servant,  or  other  tliird  person,  for  the  use  of '  Ksj,.  N.  P. 
the  plaintiff,  it   must   be  shewn,  in  addition  to  the  fact  of  pay- 
ment, that  the  person  to  whom  the  payment  was  made,  had  ei- 
ther a  general  authority  to  receive  money,  as  being  accustomed  to 
receive  it  in  the  plaintiflPs  shop,  or  the  like;  or  else  that  he  had  a 
particular  authority  for  tl  e  occasion. (m)  As  where  a  man  sends  a 
horse  to  a  fair  to  be  sold,  the  presumption  is,  that  he  means  to  en- 
trust the  person  who  has  the  horse  rather  than  a  mere  stranger 
with  the  money,  and  therefore  payment  to  him  is  payment  to  his 
principal. (2)  So  where  a  broker  sells  the  goods  of  v5.  to  7?.  without  (2'l  Anon.  12 
naming  his  principal,  and  gives  the  usual  bought  and  sold  note  to 
the  buyer  and  the  seller,  and  the  buyer  afterwards  pays  him,  this 
is  payment  to  the  principal  ;(3)  and  if  the  buyer,  having  bought (3)  pavencw. 
other  goods  of  the  same  broker,  pay  him  generally,  on  account,  3^jV'iI"'"'og 
sum  of  money  more  than  sufficient  to  satisfy  one  demand,  but  not 
enough  to  discharge  both,  each   of  the  sellers  must,  in  case  of 
the  insolvency  of  the  broker,  apply  a  proportionable  share  of  the 
money  received  by  the  broker  towards  the  discharge  of  his  debt, 
and  can  only  recover  the  balance.     Payment  to  the  plaintiff's 
attorney,  after  he  is  privately  changed,  without   leave   of  the 
Court,  is  also  a  good  payment  to  the  plaint!ft';(4)  but  payment (4)  Powell  v. 
to  a  country  attorney,  to  whom  he  who  is   properly  concerned  e'-ack'  8, 
for  the  plaintiff  sends  a  writ  for  the  mere  purpose  of  getting  it 

•  (5)  Yates  v. 

executed,  is  not  sufficient  ;t5)  neither  will   a  payment  made  tOp,.,.cki,,o„^' 
an  attorney  on  record,  but  who,  in  fact,  was  never  employed  by  '^""S'  ^23. 
the  plaintiff,  discharge  the  defendant,(6)     So  that  in  all  these(fi)  Robson  v. 
cases  the  defendant  should  be  prepared  to  shew  that  the  attor-  ^""""'i  ^• 
ney  was  employed  by  the  plaintiff.(a;) 

release  of  all  actions  to  the  Sheriff  l)y  the  plaintiff,  was  ao  bar  to  the  action  against 
the  defendant.     Wilson  etal.  v.  Reed,  3  Johns   Rep.  175. — Am  Ed. 

(m)  Payment  to  one  partner  is  a  payment  li>  all  the  co-partnership,  unless,  per-  / 

haps,  where  it  is  foi'bidilen  by  'hi;  company.  Scott  v.  Trent,  I  Wash.  Rep.  lOl.  S. 
P.  Blnck  V.  Bird,  I  llayw   Rep   9.73. 

A  jiajiuent  to  a  cL-rk  of  tiie  parly,  (which  clerk  received  it  in  the  usual  course  of 
busini'ss,)  is  a  payment  to  the  parly  himself,  ibid. 

A  ()a\  ment  to  the  partner  of  one,  who  was  lb-  creditor's  attorney,  but  not  joined 
in  the  power  of  attorney,  is  not  paymint  to  the  principal.  Broivn  v.  Bull,  3  Mass, 
Rep  211. 

(x)  In  Virginia,  it  has  been  ruled,  that  a  payment  to  an  attorney  at  law  is  good 
on  the  cusiom  of  the  country,  particularly  if  he  have  possession  of  the  specialty. 
Hudson  V.  Johnson,  1  Wash.  Hep.  16.  Branch  v.  liurnley,  1  Ccdl.  Rep,  147. 
M'Rea  v.  Broiun,  2  Murif.  Rep.  43.     Wilson  y.  Stokes  et  al.  4  J)o,  455. 


41S  ASSUMPSIT. 

Part  II.         If  a  bill  of  exchange  be  paid  by  the  defendant  to  the  plaintiff, 

Payment,    ^j^^  ^]^g  plaintiff  is  guiltj  of  negligence  in  not  giving  notice  of 

"~~~~~~~  its  dishonour,  this  will  be  considered  as  payment.     But  where 

the  promissory  notes  of  a  banker  were  given   in  payment  for 

goods  at  the  time  of  the  purchase,  which  notes  afterwards  turned 

out  to  be  of  no  value,  on  account  of  the  banker  having  then 

stopped  payment,  it  was  held   that  this  was   no   satisfaction  of 

the  debt,  unless  the  seller  expressly  agreed   to  run   the  risk  of 

(1)  Owenson  ^\^q\j.  being  paid.(l)     If  the  creditor  desire  his  debtor  to  remit  a 

V.  Moi-sp,  7  .11  .... 

T.  R'-p.  6i     bill  by  the  post,  and  the  letter  containing  it  miscarry,  the  cre- 

,„\,,-  ditor  must  stand  to  the  k)ss.(2)(?/)     But  in  such  a  case  it  has  been 

V  N.);,k  s,     held,  that  the  delivery  of  the  letter  to  a  bellman  in  the  street* 

Cas'^er  and  not  at  a  regular  receiving  house,  is   not  a  compliance  with 

the  directions  of  the  creditor,  and  that  in  case  of  its  miscarriage 

when  so  delivered,  the  loss  will   fall  on  the  person  so  impro- 

(3)  Hawkins  perly  sending  itA3)     On  the  same  principle  it  would  probably 

7).  R.itt,         |jg  held,  that  the   sending  of  bank  notes  uncut  would   not  dis- 

186.  ^  charge  the  debtor,  where   he  was  directed   in  general  terms  to 

remit  by  the  post,  because  amongst  prudent  people  it  is  usual 

to  cut  such  securities  in  halves,  and  send  them  at  different  times. 

In  case   the  creditoi'  gave  no  specific  directions  as  to  the  mode 

of  remittance,  the  proof  of  putting  the  letter  containing  the  bills 

or  notes   into  the   post,  would  be  prima  facie  evidence  of  their 

safe  arrival;  but  this  might  be  answered  by  proof,  on  the  part 

of  the  creditor,  that  the  bills  or  notes  got  into  other  hands,  and 

were  received  by  some  person  with  whom  he  had  no  connection. 

The  mere  circumstance  of  the  defendant  having  drawn  a  check 

on  his  banker,  payable  to  the  plaintiff  or  bearer,  affords  no  proof 

of  payment,  because,  being  payable  to  bearer,  it  does  not  appear 

that  it  was  ever  in  the  hands  of  the  plaintiff;  but  if  he  endorse 

his  name  on  it,  this  is  sufficient  to  call  upon  him  to   shew  that 

(4)Eg?;tj.      it  was  paid  pn  some  other  account.(4) 

Barnett,  3 

Esp.  Cas.  196.  • 

Under  particular  circumstances,  the  above  rule  might  not  apply  ;  as  if  notice  were 
given  that  no  such  power  was  vested  in  the  attorney,  ibid.  Vide  Denton  et  al.  v. 
JVoyes,  6  Jolins.  Rep.  '296. — Am,  Ed. 

(?/)  A  Sheriff  having  an  execution  in  his  hands,  and  the  return  day  being  passed, 
the  creditor's  attorney  writes  to  the  Sheriff,  presuming  him  to  have  the  money, 
and  requests  him  to  send  it  to  him  by  mail ;  at  that  time  the  SherifiFhad  not  receiv- 
ed the  money  ;  several  months  after  he  received  it  and  put  it  into  the  post-office,  di- 
rected to  the  creditor's  attorney,  to  whom  it  was  never  delivered.  In  an  action 
against  the  Sheriff,  it  was  held,  that  the  money  was  sent  at  his  own  risk,  though,  if 
he  had  sent  it  on  receiving  the  attorney's  letter,  it  would  have  been  at  the  risk  of 
the  creditor.     Wakefield  v.  Lithgoiv,  3  Mass.  Rep.  249.— Am.  Ed. 


GENERAL  ISSUE.  ^^3 

As  to  the  application  of  money  paid,  the  rule  is,  that  the  per-  ch.  H.  s.  3. 
son   paying  may  direct  the  application  of  it ;  and,  therefore,     f^ynent, 
where  there  are  more  accounts  than  one  between  a  debtor  and  — — — — 
his  creditor,  as  for  instance,  one  debt  on  a  bond,  and  another 
on  a  simple  contract,  if  the  debtor,  when  he  pays  a  sum  of  mo- 
ney, declare  that  he  pays  it  specifically  on  either  of  these  ac- 
counts, the  creditor  cannot  afterwards  place  it  to  the  other.(l)(z)  (')  Anon. 

(Jro  PI   68 

But  if  the  payment  be  general,  and  no  specific  application  made 


(z)  In  Connecticut,  the  general  rule  is  settled,  that  he  who  pays  the  money  has 
a  right  to  direct  the  application,  it'  there  be  several  duties  to  which  it  may  be  ap- 
plied ;  but  if  he  neglect  to  do  it,  the  person  receiving  it  may  make  his  election. 
Kissam  et  al.  v.  Burrall,  Kirb.  Rep.  326.  Gwinn  etux.  v.  lVTiitaker''s  adms.  1  Har. 
6?  Johns.  Rep.  75i. 

So  in  JVetw  York,  J[fann  v.  JMcirsh,  2  Caiiics^  Rep.  99.  Coleman  &  Caines^ 
Cas.  in  Prac.  365. 

So  in  JV*.  Curolina,  Ray  v.  Manner,  2  Uayiu.  Rep.  385. 

The  same  rule  wasrecognistd  in  the  Supreme  Court  of  the  United  States.  JMayor 
&c.  ofAlexandria  v.  Patten,  4  Crunches  Rep.  317. 

But  where  a  creditor  has  two  demands  against  his  debtor,  and  the  debtor  pays 
a  sum  of  money,  without  directing  to  which  it  shall  be  applied,  if  the  amount  paid, 
exceeds  one  of  the  demands,  and  is  exactly  equal  to  what  remains  due  on  the 
other,  it  will  be  considered  as  having  been  paid  in  discharging  that  other.  Robei  t 
H  al.  V.  Garnie,  3  Caines'  Rep.  14. 

If  the  debtor  neglect  to  make  the  application,  at  the  time  of  payment,  the  elec- 
tion is  then  cast  upon  the  creditor,  yet  it  is  incumbent  on  him  in  such  a  case,  to 
make  a  I'ecent  application  by  entries  in  his  hooks  or  papers,  and  not  to  keep  par- 
ties and  securities  in  suspense,  as  interest,  governed  by  events,  may  dictate.  Hill  et 
al.  v.  Southerlan<rs exrs.  1  Wash.  Rep.  166.  Vide  Thompsons.  Davenport  el  al, 
ibid.lGl. 

A  payment  ought,  in  the  first  instance,  to  be  applied  to  the  discharge  of  the  in- 
terest accrued,  and  if  a  balance  of  payments  remains  due,  then  to  deduct  it  from 
the  principal.  A^orth  v.  JMallett,  2  Hay~.v.  Rep.  151.  Frazier  v.  Ilyland,  I  Har. 
&  Johns.  Rep.  98.    Tracy  v.  IVikoff,  1  Dall.  Rep.  124. 

If  the  debtor  is  indebted  on  mortgage  or  bond,  and  simple  contract,  and  when  he 
makes  a  payment,  should  neglect  to  apply  it,  the  law  will  make  application  of  it  in 
the  way  most  advantageous  to  the  debtor,  that  is  to  the  mortgage  or  bond.  Givinn 
et  itx.  v.  tVhitaker''s  adms.  I  Har.  £J  Johns.  Rep.  751. 

If  neither  debtor,  nor  creditor,  has  made  the  application  of  the  payments,  the 
Court  will  apply  them  to  the  d-bts  lor  which  t!ie  security  is  most  precarious.  Field 
et  al.  V.  Holland  et  al.  6  Crunch's  Rep.  8. 

A  payment  for  which  a  receipt  is  given  to  a  person  in  his  own  name,  is  evidence 
of  payment  on  his  own  account,  and  that  ii  was  not  made  on  account  of  a  debt  due 
from  him  and  another,  though  there  do  not  appear  any  directions  to  apply  it  to  the 
separate  .account ;  and  this  i?iference  will  be  drawn,  especiall)  if  such  payment  be 
for  the  exact  amount  of  a  balance  due  from  himself,  and  would  exceed  the  joint  debt. 
Robert  et  ul.  v.  Garnie,  3  Caines''  Rep.  14. 

In  South  Coroliiia,  it  h^s  been  decided,  that  where  money  is  paid  on  account  of 
three  bonds  genernliy,  and  more  than  enough  to  pay  1  iff  the  two  first,  those  two 
shall  be  considered  extinct  under  tl)e  dejireciatiun  laiv,  and  the  balance  shall  be  car- 
rier! to  the  credit  ot  the  third  bond.  £xrs.  of  Uuger  v.  jltocquet,  1  Jiuy's  Rep. 
497 Am.  Eo. 


41  4j  assumpsit. 

Part  II.  by  the  debtor  at  the  time  of  payment,  the  creditor  may,  unless 
Payment,  jjj  cases  vvliero  the  debtor  is  indei)ted  in  diifererit  characters,  or, 
~~~~~~~  having  ceased  to  be  a  trader,  subjected  himself  to  the  operation 
of  the  bankrupt  laws,  or  where  the  interest  of  third  persons 
would  be  aft'ected,  place  the  money  paid  to  which  account  he 
pleases.  Thus  where  the  plaintiff  served  the  defendant  three 
years  under  an  indenture,  auti  three  more  under  a  simple  con- 
tract, having  during  both  periods  received  goods  and  money  ge- 
nerally on  account  of  wages,  the  whole  of  which  receipts  would, 
if  placed  to  the  account  of  the  first  service,  be  more  than  sufficient 
to  satisfy  it,  but  which  were  all  blended  in  one  account.  He 
afterwards  brought  two  actions,  the  one  in  covenant,  the  other  in 
assvmpsii,  upon  which  the  defendant  attempted  to  appropriate 
so  much  of  the  payment  as  was  sufficient  to  satisfy  the  first  ac- 
count, to  the  action  of  covenant,  but  the  Court  held,  that  the 
plaintiff  had  his  election  to  ascribe  to  the  second  debt,  for  which 
he  had  the  worst  security,  the  money  received  during  the  second 
{ I)  Peters  w.  period,  and  might  therefore  recover  in  both  actions.(l)  But  where 
Anderson,  5  Qjjg  account  is  With  the  debtor  in  his  own  right,  and  the  other  as 
executor,  the  law  will  consider  the  payment  as  made  on  account 
of  himself  individually,  and  will  not  permit  the  creditor  to  apply 

(2)  Goddard  it  to  any  other  account.(2)  So  where  a  trader  being  indebted 
7).  Cox,  2  yg  money,  and  after  leaving;  off  trade  contracts  a  further  debt, 

blra.  119*,       '  ,       \!       ,  r         i  • 

and  makes  further  paynients,  if  nothing  be  said  as  to  the  applica- 
tion, the  law'  applies  the  payment  to  the  first  debt,  so  as  to  pre- 
vent the  creditor  from  taking  out  a  commission  of  bankruptcyj 
if  sufficient  has  been  paid  to  reduce  the  debt,  contracted  while 

(3)  Mer°-ot  z:  ^^^^  party  was  a  trader,  under  100/.(3)  for  it  shall  be  intended  that 
Mills,  i  Lord  the  party,  who  made  the  payment,  did  not  mean  after  he  had 
Da«e-r  ceased  to  be  a  trader,  that  the  old  debt  should  remain  unextin- 
Hoidswoitii.    guished,  so  as  to  make  him  liable  to  the  bankrupt  law-s. 

I  eake  s  Cus.    ^  ^ 

64,  as  ex-  Again,  where  •/?.  having  dealt  for  a  long  time  with  B.  and  C. 

5  t"'^'\  go^  '^^  partners,  not  knowing  that  they  had  a  third  partner,  furnished 
them  with  goods,  and  received  money  on  account  generally,  con- 
tinuin";  the  same  course  of  dealins:  after  the  secret  dissolution  of 
the  partnership,  after  which  some  bills  paid  during  the  partner- 
ship were  dishonoured  and  delivered  up  on  new  good  bills  being 

H]  New-        P^'^  '"  ''^^  "^  them  ;  it  was  holden,(4)  that  such  delivery  up  of 

marshr. Clay,  the  old  dishonoured  bills,  upon  receipt  of  the  now  good  ones, 

^^'""^  •   was  evidence  of  a  particular  appropriation  of  such  new  bills  in 

payment  and  discharge  of  the  old  debt ;  and  that  the  secret  third 

partner  might  avail  himself  of  such  discharge,  in  an  action  against 

himself,  jointly  with  B.  and  C.     Lastly,  where  a  person  keeping 


GENERAL  ISSUBi 


415 


cash  with  a  banker,  deposited  with  him  the  note  of  a  third  per-  ch.  II.  s.  3. 
son  for  a  sum  of  money,  telling  him  at  the  same  tim«*  that  it  was    P"'™*'"*- 
a  note  made  for  his  accommodation,  and  afterwards  paid  a  sum  — — — — 
of  money  into  the  banker's  hands  without  making  any  specific 
appropriation  of  it,  Lord  Kenyon  held  that  this  money  must  be 
placed,  as  far  as  it  would  g«»,  towards  the  discharge  of  the  then 
existing  debt,(l)  and  that  the  banker  could  not  hold  the  maker  CO  H'-'™- 
of  the  note  responsible  for  more  than  the  balance  remaining  due[^'|'^,'j*^^,f^^''' 
at  the  time  of  such  payment,  though  he  afterwards  trusted  his  iii:si).Cas.66. 
debtor  with  a  further  sum  of  money. 
The  most  ordinary  special  pleas  are, 

1.  A  set-ofFof  a  debt  due  from  the  plaintiff  to  the  defendant. 

2.  The  Statute  of  Limitations. 

3.  A  tender  of  the  money  before   the  commencement  of  the 
action. 

As  to  the  first,  it  should  be  observed,  that  where  a  particular  Set-off. 
sum  of  money  is  received  by  the  defendant,  who  is  entitled  to 
retain  a  part  of  it  for  his  labour ;  or  the  plaintiff  agrees  to  mo- 
ney being  retained  by  the  defendant  to  satisfy  himself  some 
other  demand  ;  these  are  not  properly  matters  of  set-off,  but 
are  evidence  under  the  general  issue  as  payment.(2)  But  where  (2)  Daiei:;.' 
it  becomes  necessary  for  the  defendant  to  have  recourse  to  the .233^^' 
Statute  of  Set-off,  he  must  prove  the  same  facfs  in  support  of 
his  counter  demand,  as  if  he  himself  were  plaintiff  in  another 
action  ;  and  if  he  has  not  pleaded  his  set-off,  but  giving  notice 
of  it,  he  must  be  prepared  to  prove  the  delivery  of  such  notice. 
A  set-off  can  only  be  made  where  both  the  plaintiff's  and  de- 
fendant's demands  are  certain  and  liquidated. (a) 


(a)  In  JUassachusetts,  a  demand  which  the  dtfendant  is  entitled  to  set  off,  un- 
der the  Stat,  of  1793,  c.  75,  s.  4,  must  he  such  a  demiml  us  has  arisen  from  trans- 
actions between  the  parties  on  the  suit.     Holland  v.  jyiahspeace,  8  Jllass.  Bep.ilS. 

Dealings  between  the  parties  to  the  record  only  can  be  set  off.  Prior  v.  Jacocks, 
1  Johns.  Cas.  tG9. 

The  decisions  in  JVeiv  York,  seem  different.  Caines  v.  Brisban  et  al.  13  Johns. 
Rep.  9. 

In  Pennsylvania,  debts  whicli  can  be  set  off,  must  he  such  as  ar^  due  in  the  same 
right.  Darroch's  exrs.  v.  Hni)''s  aclmrs.  2  Yeates'  Rep.  '208.  Dunkin  v.  Calbndth, 
1  Brownes^  Rep.  48. 

But  it  is  not  essential  to  a  set-nff,  that  the  defendant  should  l>e  able  to  sue  for  the 
demand  in  his  own  name.     Murray  v.  Williamson,  3  Binn.  Rep.  135, 

It  may  be  either  by  or  against  an  executor  or  administrator,  ibid. 

Wheihi-r  after  a  verdict  against  the  def-  ndaut  as  executor,  he  can,  on  motion,  be 
allowed  to  set-off  against  the  amount  or  debt  due  to  him  personidiy  by  the  plaintiff, 
for  which  he  has  obtained  judgment,  dubitatur.  Wain  v.  Antlmiy,  3  Ser^.  &  R. 
Rep.  468. 


416  I      ASSUMPSIT*. 

Part.  II.         The  Stattrte  of  Linktations  is  pleaded  in  two  forms ;  as,  first, 
Lfmkatlons.  ^^^^  *^^  defendant  di|5  not  undertake  within  six  years  next  be- 


The  Statute  of  Set-Off,  is  to  be  liberally  expounded,  to  advance  justice  and  pre- 
vent circuity  of  action.     Tuttle  v.  Beebee,S  Johns.  Rep.  118. 

Liquidated  debts  may  be  set  off,  but  not  those  which  are  unliquidated.  Webb  v. 
Fitch,  1  Roofs  Rep.  177.  Bro-zuii  v.  Cuming,  2  Caines'  Rep.  33.  Kachlinet  at.  v, 
Muthal/on  et  al.  ^iDall.  Rep  237.  S.  C.  I  Yeates''  Rep.  571.  Stiles  v.  Donaldson, 
ibid.  264.  S.  C.  "i;  Yeates'  Rep.  105.  Hugg  v.  Jleke,  1  Haijiv.  Rep.  471.  Rep.  in  Co. 
of  Cotif.  1.  Wolford  V.  Greenlee,  ibid.  IS.  Gibbes  v.  JMitchell,  2  Hay's  Rep.  351. 
JUorrison  v.  Rait,  Hard.  Rep.  150.  Taylor  v.  Stout,  1  Core's  Rep.  53.  Smock  v. 
Morford,  1  South.  Rep.  306.  Keekr  v.  Adams,  3  Caines'  Rep.  84.  Hazlehurst  et 
al.  V.  Bayard,  3  Fea^es'  i?e/).  152. 

An  officer  is  empowered  to  set-off  one  execution  against  another  between  the  same 
parties,  and  both  in  his  Imnds  at  the  same  time.      Culver  v.  Pearl,  1  Tyl.  Rep.  12. 

The  penalty  of  a  bond  cannot  be  setoff,  but  the  sum  actually  due.  Burgess  \. 
Tucker,  5  Johns.  Rep.  105. 

The  defendant  cannot  set  off  a  claim  for  bad  debts,  made  by  the  misconduct  of 
tlie  plaintiff  in  selling  the  defendant's  goods  as  factor,  the  plaintiff  not  having  gua- 
ranteed those  debts ;  but  such  misconduct  is  proper  to  be  inquired  into  a  suit  for 
that  purpose.     Winchester  v.  Hackley,  2  Cranch's  Rep.  342. 

A  debt  rendered  certain  b)  judgment  may  be  set  off,  even  though  in  a  different 
Court.  Schermerhom  v.  Schermerhoim,  3  Caines'  Rep.  190.  Devoy  v.  Boyer,  3 
Johns.  Rep.  247.  J^'oblev.  Hoiaard,  •iHayvi.  Rep.  14. 

Sed  vide  ^;'ewc>?&7i  v.  Harns,  I  Johns.  Rep.  144.  Goodeno-wr.  Buttnck,  7 
JMass.  Rep.  140.    Makepeaces.  Coateset  al.  8  Do.  451.    Greene  admr.  v.  Hatch, 

vzn-.  195. 

A  Court  of  Zaw  allows  set  -off  of  judgments  ex  gratia;  but  Courts  oi  Equity  as  a 
matter  of  right.  Simson  v.  Hurt,  14  Johns.  Rep.  63. 

An  aivard  for  the  payment  of  money  may  be  set  off.  Burgess  v.  Tucker,  5 
Johns.  Rep.  105. 

A  debt  not  due  at  the  time  of  the  commencement  of  the  action,  cannot  be  set  off. 
Bull  V.  Hopkins,  7  Johns.  Rep.  22.  Reed  v.  higraham,  3  Dall.  Rep.  505.  S.  C.2 
Yeates'  Rep.  487.  4  Dall.  Rep.  166.  Tubenille  v.  Self,  2  Wash.  Rep.  61.  Raw- 
thorn  V,  Roberts,  Hard.  Rep.  70.  Carpenter  v.  Butterjield,  3  Johns.  Cas.  145. 
Jefferson  County  \.  Chapman,  \'i  Johns.  Rep  322. 

In  Pennsylvania,  an  equitable  demand  may  be  set  off.  Murray  ?.  Williamson, 
3  Binn.  Rep,  135. 

In  what  suits  set-offs  -will  be  allowed. 

In  Connecticut,  on  a  hearing  in  damages  on  a  note  which  is  defaulted,  a  claim  oq 
the  ground  of  another  agreement  by  the  defendant  canimt  &»•  set  off,  Phillips  T, 
Halsey,  1  Root's  Rep.  194.     S-  P.  Branch  v.  Riley,  ibid.  541. 

In  a  hearing  in  damages  in  an  action  nt  covenant,  -hf-  Coui-t  will  not  allow  a  set- 
off of  mutual  covenants.      Cochran  v.  Leicester,  2  Root's  Rep.  348. 

In  an  action  brought  by  th»-  Cominonioealth  of  Pennsylvania,  a  set-off  was  refus- 
ed.    Commoniuealth  v  Matlack,  4  Dall  Rep.  303. 

The  assignee  of  a  policy  ot  insurance,  takes  it  subject  to  every  set-off  that  existed, 
as  between  the  original  parties,  before  the  assignment.  Gourdon  v.  Ins.  Co.  of 
JV".  America,  3  Yeates'  Rep.  327.  1  Binn.  Rep.  430,  in  note.  Rousset  v.  Ins.  Co, 
of  ^V.  America,  ibid.  4'29. 

So,  though  it  be  an  open  policy,  and  the  claim  be  for  &  partial  loss.  Rousset  r. 
Ins.  Co.  J^.  America,  ibid. 


STATUTE  OF  LIMITATIONS.  ^|y 

fore  the  commencement  of  the  action ;  or,   secondly,  that  the  Ch.  11.  s.  3. 
cause  of  action  did  not  accrue  within  that  time.     The  last  form  ,^''*f,"'':  *^' 

Limitations. 


A  stt-off  (o  an  open  policy  of  insurance  cannot  be  allowed.  Gordon  v.  Botvne,  2 
Johns.  Rep.  150 

A  ser-ofFis  not  admissible,  where  the  demand  against  the  pJMintiff  arisf  s  fiom  an 
act  done  by  him  of  a  tortious  nauire.      Go^elv.  Jacohy,  5  Serg.  &  R.  Rep.  1'22. 

Damages  on  specral  contracts,  cannot  be  set  off  in  an  action  of  debt.  Smock  v. 
Morfurd,  1  South   Rep  ;306 

The  same  principle  was  recognised  in  J^'urth  Carolina.  State  v.  — — ,  1  Ilayiv. 
Rep.  221. 

In  a  special  action  on  the  case  for  damages,  a  set-ofF  will  not  he  admitted.  Keeler 
V.  Mams,  3  Cdines'  Rep.  84  Coleman  &  Caines''  Cas.  in  Pvac.  435.  Stone  v. 
Rafter,  1  Har.  &  Johns.  Rep  304. 

In  an  action  of  debt  brought  on  an  arbitration  bond  fo:  the  amount  of  an  award,  a 
set-off  will  be  allowed.     Burgess  v.  Tucker,  5  Johns.  Rep   105. 

A  set-off  \vill  be  allowed  in  an  action  o{  assnmpsit,  even  th')ngh  an  action  of  tres- 
pass is  also  depending  b'  uvc-  n  the  same  parlies,  and  being  first  called  on,  is  con- 
tinued,    ^llen  V.  HoiHon.  7  Johns.  Rep  23. 

The  costs  allowed  the  present  defei.<lant  against  the  present  plaintiff,  in  three 
former  suits,  were  admilied  as  a  set-off  iigfinst  the  d'amages  recovered  by  the  plain- 
tiff against  the  defendant  in  the  present  suit.  Cole  v.  Grant,  2  Caines''  Rep.  105. 
Coleman  &  Caines''  Cas   in  Prac.  308. 

The  plaintiff  in  replevin  nriy  avail  himself  of  a  set-off  on  the  same  princi[)lc  that 
the  defendant  mav  disprove  discounts  in  any  other  suit.  JKtcolson  et  at.  v.  Hancock 
et  al.  4  Hen.  &  Munf.  Rep.  491. 

JiTittnality  of  debts. 

When  an  action  is  brought  against  two  upon  their  joint  note,  the  individual  de- 
mands of  either  may  be  set-off  to  i  he  note.  Ashley  v,  Willard  et  al.  2  Tyler's  Rep. 
391.  Sed  contra  Walker  v.  Leigliton,  et  al.  II  Mass.  Rep.  140. 

But  a  debt  due  from  an  individual  partner  cannot  be  set  off  i"  a  suit  brouglit  for  a 
partnership  debt.  Lyle  v.  Clason,  Col.  H  Caines'  Cos.  in  Prac.  233.  Scott  v. 
Trent,  1  fVush.  Rep.  101.  Arinistead\.  Butler,  \  Hen.  &  Jlwf.  Rep.  176.  Pow. 
rie  et  al.  v.  Fletcher,  2  Bay's  Rep.  146.  Smith  v.  Duncan,  Mart  Orl.  T.  R.  25. 
Exrs.  of  Bo-iune  v  Thompson  etal.  1  Coxe''s  Rep.  2.  Williams  et  al.  v.  Hamilton,  1 
South's  Rep.  220.  Ritchie  et  al.  v.  Moore,  5  Munf.  Rep.  388.  Tuckers  v.  Ox- 
ley,  5  CranclCs  Rep.  34.     Vide  Purviance  v.  Sutherland,  Addis.  Rep.  291. 

In  Massachusetts,  an  officer  li;iving  :tn  execution  in  favour  of  ^.  against  B-  and 
C.  and  another  in  favour  of  B.  against  A  ouglit,  if  B.  desire  it,  to  set  off  oue  exe- 
cution against  the  other.     Goodenow  v    Buttrick,  7  Mass.  Rep.  140. 

The  commissioners  on  an  insolvent  estate,  are  to  set  off  mutual  claims  between 
the  creditors  and  fleceased  ;  but  what  ;iii  administrator  received  as  such  cannot  be 
set-off  against  his  own  ilebt.     Staniford  v.  Hide,  1  Root's  Rep.  597. 

A  note,  purchased  by  the  debtor  of  an  insolvent,  alter  an  assignment  for  the  use 
of  creditors,  and  also  after  the  note  had  h  come  due,  cunnot  be  set-off  by  him,  in  an 
action  brought  by  the  assignees.  Johnsons.  Bloodgood,!  Johns.  Cas.  51.  S.  C. 
2  JV.  York  Cas.  in  Er.  302.  S.  P.  Freelo.nd  v.  Hoiuell,  I  Anth.  JV  P    Cas.  59. 

In  an  actiori  brought  by  the  assignees  of  a  bankriii>t,  on  a  note  due  to  ihe  bank- 
rupt's estate,  the  defendant  cannot  sel-offa  check  issued  by  a  bankrupt  payable  to 
bearer,  beating  date  before  the  bat  ki'U))tc\ ,  unless  he  prove  the  check  cairie  to  his 
handsprior  to  the  bankruptcy.     Ogden  et  al  v.  Couleif    l  Johns    Rep. '27  i. 

A  commission  of  bankruptcy,  is  legal  notice  to  affect  the  subsequent  assignee  of  a 

3  H 


418  ASSUiMPSlT. 

Part  II.      is  applicable  to  all  cases,  and  the  only  one  that  can  be  made  use 
LimUaUons    ^^  where  the  promise  is  executory,  viz.  to  pay  money,  or  to  do 


promissory  noic,  with  the  right  of  setting-off  mutual  debts.  Humphries  v.  Slight's 
ass.  4  JDall.  Rep.  370. 

But  in  an  action  by  an  endorser  of  a  promissory  note  against  tlie  maker,  the  lat- 
ter will  not  be  allowed  to  prove  a  set-off  against  the  original  payee,  unless  he  shew 
that  the  note  was  transferred  after  it  became  due,  or  lor  the  purpose  of  defrauding 
the  maker  oi his  set-off.     Hendricks  v.  Judah,  I  Johns.  Rep.  318. 

The  defendant  executed  a  stock  contract,  made  payable  to  the  original  party,  or 
his  order;  in  an  action  brought  by  the  assignee  of  such  contract  in  his  own  name,  on 
an  assignment  made  before  it  became  due,  it  would  seem  the  defendant  cannot  set- 
off a  debt  due  from  the  assignor.  Reeds.  Ingraham,  3  Dall.  Rep.  505.  5.  C.  4  Do. 
169.  2  Yeates'  Rep.  487. 

The  Court  will  not  order  a  judgment  obtained  against  plaintiff  by  a  third  person, 
and  assigned  to  the  defendant,  to  be  set-off  against  a  judgment  obtained  by  a  plain- 
tiff against  the  defendant,  when  the  plaintiff  has  previously  to  the  assignment  of  the 
judgment  made  over  his  properly,  for  the  use  of  his  creditors.  Dunhiiiv.  Calbruith, 
1  Bro-wnes''  Rep.  47. 

The  assignee  of  a  policy  of  insurance  is  liable  to  any  set-ofF,  which  the  ander- 
vvriters  might  have  made  against  the  assignor.  Rousset  v.  The  Ins.  Co.  o/J^i. 
America,  1  Binn.  Rep.  429. 

If  an  administratoi-  obtain  judgment  against  the  debtor  of  his  intestate,  and  after- 
wards the  defendant  pays  a  sum  of  money  as  security  in  a  bond  for  the  intestate,  the 
defei>dant  may  in  a  scire  facias  post  annum  et  diem  on  the  judgment,  avail  himself 
of  such  payment  as  an  equitable  defence.  Dorsheimer  t.  Bucher,  7  Serg.  cif  R. 
Rep  9. 

It  is  a  principle  of  equity,  wherever  the  Court  finds  mutual  demands,  to  endea- 
vour to  set  one  off  against  the  other,  and  Courts  of  Law  in  /•e/ins^/rtoua,  have  adopt- 
ed the  doctrine  of  Courts  of  Chancery,  with  respect  to  equitable  set-offs.  J\Iorgan 
et  al.  V.  Bank  ofJV.  America,^  Serg.  ^  R.  Rep.  73. 

In  an  action  on  a  bond,  entered  into  by  the  defendant  as  surety,  he  cannot  give  in 
evidence  as  a  set-off,  that  land,  which,  prior  to  the  date  of  the  bond,  the  plaintiff 
had  agreed  to  sell  him,  had  been  levied  on  by  an  execution,  issued  upon  a  judgement 
against  the  plaintiff,  by  one  of  the  plaintiff's  creditors,  subsequently  to  such  agree- 
ment to  sell.     Brot/ierton  v.  Haslet,  5  Serg.  &  R.  Rep.  33*. 

In  an  action  for  services  performed  by  the  plaintiff  as  house-keeper,  and  also  for 
goods  sold  and  delivered,  evidence  ot  acts  oi  malfeasance,  by  the  plaintiff,  in  em- 
bezzling the  property  of  ihe  defendant,  is  not  admissible  by  way  of  set-off,  but  may 
be  given  in  evidence,  under  the  pie.-*  of  no/i  assumpsit  and  payment  with  leave,  &c, 
(Dlxcan.  J.  dissenting)     Heck  v.  Shener,  4  Serg.  &  R.  Rep.  249. 

It  a  suit  be  brought  by  the  assign-'e  of  an  open  account^/br  the  use  of  the  assignee , 
the  debtor  will  be  allowed  to  set-off  his  claims  against  the  assignee.  Winchester  v. 
Hackley,  2  Crajtch's  Rep.  342. 

Wherever  the  vendee  is  deceived  in  the  purchase  of  land  by  misrepresentation, 
he  may  plead  it,  or  give  it  in  evidence  in  discount,  against  a  bond  given  for  the  pur- 
chase money.     Adams  v.  Wylie,  1  JVott  &  M'  Cord's  Rep  78. 

Where  the  defenc-  only  goes  to  shew  a  defect  ui  the  article  conveyed,  or  a  de- 
fective title  to  part- of  the  articles,  or  to  07ie  or  more,  where  the  title  embraces  seve- 
ral, it  must  be  by  discount.     Furrow  v.  Mays,  ibid.  314. 

In  an  action,  brought  against  an  obligor,  on  a  joint  and  several  bond,  a  pavraent 
made  by  the  other  upon  account  of  it  may  be  given  in  evidence,  or  fair  discounts,  in 
right  of  the  other,  may  be  set-off  agninsi  it.  .Mitchell  v.  Gibbes,  2  Bay's  Rep  475, 

Where  a  bond  assigned  to  defendant,  was  offered  in  discount  against  one  given  by 


STATUTE  OP  LIMITATIONS.  q,j^g 

an  act  at  a  distant  time ;  for  till  that  time  is  past,  no  cause  of  ch.  n.  s.  r,. 

Stituie  of 
^ ■ — — — — — ^ — • Limitations. 


him  to  the  plaintiff's  intestate,  a  receipt  is  good  evidence  to  shew  that  the  assigned 
bond  has  been  paid  off,  and  sucli  receipt  is  not  bound  by  the  Statute  of  Limitations. 
Ad7nrs.  of  Comply  v.  Aiken,  ibid.  481. 

A  set-offwiil  not  be  allowed  to  tlie  prejudice  of  a  bona  fide  purchaser,  if  it  be 
claimed  on  the  ground  of  equitable  principles.  JVoffurd  v.  G^'eeydee,  Rtp.  171  Co.  oj 
Conf.  79. 

Where  goods  are  sold  by  a  known  factor  of  a  house,  a  set-ofF  cannot  be  made 
against  their  price  by  their  purchaser,  for  a  debt  due  from  the  factor,  in  his  own 
right,  if  the  goods  be  actually  those  of  his  principal,  though  the  factor  do  carry  on 
business  for  himself,  and  nothing  be  said  at  the  time  of  sale  respecting  the  owner- 
ship of  goods.     Bovme  et  al.  v.  Robinson  et  al.  2  JV.  York  Cas.  in  Er.  341. 

The  master  of  a  vesstl  directed  his  .igenl  to  get  his  commissions,  as  master  insur- 
ed, and  the  broker  had  the  policy  effected  in  the  name  of  the  agent,  on  the  commis- 
sions of  the  master,  who  was  named  in  the  policy,  and  known  by  the  broker  to  the 
principal;  the  broker  having  recovered  a  total  loss,  in  an  action  brought  against  him 
by  the  master  for  the  same,  it  was  held  the  broker  had  no  right  to  set-off  a  debt  due 
to  him  by  the  agent.     Foster  v.  Hoyt  et  al.  2  Johns.  Cas.  327. 

If  an  assurer  know  that  the  policy,  though  in  the  name  of  the  broker,  is  in  fact  ef- 
fected on  account  of  another,  a  set-off  of  a  debt  due  from  the  broker,  cannot  be  made 
in  a  suit  by  him  on  that  policy,  though  it  be  carried  on  in  the  broker^s  tiaine.  Gor- 
don V.  Church,  2  Caines''  Rep.  299. 

A  creditor  of  an  insolvent  debtor  is  not  entitled  to  a  set-off  in  an  action  brought 
by  such  debtor's  factor,  for  goods  sold  to  the  creditor.  Jioinodv.  Pelosi,'-i  DalL 
Rep.  43. 

Debts  due  by  a  factor  to  a  purchaser,  cannot  be  set-off  against  the  demanil  of  the 
original  owner,  brought  by  him  against  such  purchaser.  Atkinson  v.  Teasdale,  1 
Bay's  Rep.  299. 

A.  is  indebted  to  B.  and  C.  partners  in  trade,  who  issue  a  foreign  attachment 
against  his  effects,  in  the  hands  of  D.  after  the  death  of  B.  and  C  ;  the  etecutors  of 
C.  who  was  surviving  partner,  obtained  a  judgment  agamst  the  clefendant  and  gar- 
nishee. B.  and  C.  were  the  endorsers  of  a  note  which  was  discounted  by  D.  and 
"which  after  their  death  was  protested  for  non-payment.  The  debt  to  D.  by  B.  and 
C.  cannot  be  set-off  against  the  debt  due  by  D.  garnishee  of  A.  to  C's  execu- 
tors ;  ./J's  debt  upon  the  death  of  B.  and  C.  became  vested  in  their  ci  edito'  s  gene- 
rally, whose  rights  could  not  be  charged  by  any  subsi'quent  proceedings  between 
the  executors  and  garnishee.  Cramond  v.  The  Bank  of  The  U.  States,  1  Binn. 
Rep.  64.  iS.  C.  4  Dall.  Rep.  291. 

The  lessee  of  land  from  an  extcutor,  cannot  purchase  in  judgments  against  the 
testator,  and  set  them  off  against  the  rent.   White  v.  Bannister,  I  Wash.  Rep.  214. 

It  would  perhaps  be  otherwise,  if  the  executor  should  have  acknowledged,  that  he 
had  a  sufficiency  of -issets.  ibid. 

So  an  executrix  selling  property,  agreed,  that  the  creditors  of  the  testator  should 
be  entitled  if  purchasers  to  a  dfjduction,  and  the  defendant  (who  was  not  a  creditor) 
purchased  at  the  sale,  gave  his  bond  ;  under  the  plea  of  payment,  the  defendant  of- 
fered to  set-off  two  bonds  due  from  testator,  which  were  assigned  to  him,  since  the 
institution  of  the  suit ;  it  was  held,  that  the  bonds  were  not  a  proper  set-off,  and  the 
agreement  extended  only  to  purchasing  creditors.     Brown  v.  Garland,  ibid.  221. 

A  demand  due  by  an  intestate,  cannot  be  set-off  to  a  bond  gi^en  to  the  adminis- 
rator.     Burton  v.  ChinJi,  Hard.  Rep.  252. 

Where  a  person  refused  to  set-oft'  a  debt,  under  an  idea  that  he  had  an  equitable 
Jetence  ;  such  conduct  will  not  be  consiilered  a  waiver  of  such  right  of  aet-off. 


420  ASSUMPSIT, 

Part  II.     action  accrues. (1)(6)     But  as  soon  as   the  cause  of  action   has 
Limi'tat'ions    accrued,  the  time  begins  to  run;  and  in  those  cases  where  the 


(t)  Gould  u 
Joliiisoii,  2 


cause  of  action  arises  from  the  negligence  of  the  defendant,  or 


Lord  HHyrn.     when  the  debt  is  transf.-rred  to  another  for  a  A^na  ^r/e  consideration,  and  without 

838.  Srtlk.       notice.     Picket  v.  Morns,  2  Wash.  Rep.  325. 

p'l    kli-  When  a  i);!rty  shall  be  onsider-d  as  abandoning  his  right  of  set-off.    Vide  Cleve- 

Moor'l  Vent.'"^'^  v-  ^'"^  ^^  "^-  ^  -''^«*«-  ^^P-  201.— Am.  Kd 

191. 

Statute  of  Limitations. 

{b)  The  StalutP  of  Limitations  is  entitled  to  the  same  respect  with  other  Statutes, 
and  ought  not  to  b-  explained  away.    Cleinentson  v.  Williams,  8  Crunches  Rep.  T'2. 

For  the  distinction  between  a  Statute  of  Limitations,  and  a  retrospective  law,  vide 
The  Society,  &c.  v.  Wheeler  et  al.  2  Gallis.  Rep  14L 

The  Statute  of  Limitations  does  not  run  against  the  Commonwealth.  Kemp  v. 
The  Common-wealth,  I  //.  &  Mxinf  Rep.  85.  S.  P.  JVimmo'sexr.  v.  Tlie  Common, 
luealth,  4  Do.  5".  Mlstoii's  hs.  v.  Saunders,  1  Bay's  Rep.  2o.  Vide  TJni-versity 
of  j^'orth  Carolina  v  .Johnston,  I  Uayui.  Rep.  373.  Birch  v.  Alexander ,  1  Wash. 
Rep.  34.  The  Inhabitants  of  Stoughton,  Sharon  &  Cariton  v.  Baker  et  al.  4  Mass. 
jRep.  528.  Johnson  v.  Irwin,  3  Serg:  &  R.  Rep.  29L  Morris  v.  Thomas,  5  Binn. 
Rep.  77. 

In  scire  facias  by  the  Crown  against  the  drawer  of  a  bill  in  the  hands  of  a  Crown 
debtor  ;  held,  that  the  claims  of  the  Crown  being  only  a  ileviative  right,  must  stand 
in  the  same  situation  as  that  of  the  principal,  and  that  the  plea  of  the  Statute  of  Li- 
mitations was  a  good  bar.  Rex  v.  Morrall,  6  Price's  Ex.  Rep.  24. 

The  Statute  of  Liaiiiations  of  another  Stale,  cannot  be  pleaded  in  bar  to  an  action, 
commei/ccd  in  a  Court  in  this  State,  by  an  inhabitant  of  such  other  State,  on  a  note 
theie  execiit<-d.  Pearsall  etal  v.  IhviglU  et  al.2  Mass.  Rep.  84.  Byrne  v.  Crotvn- 
inshield,  17  Bo.  55. 

So  in  Maryland,  in  an  action  ot  ejectment  twenty  years  possession  was  hA<\  to 
be  no  bar  to  the  Lord  Proprietary.  Tusker's  les  v.  Whittington,  1  Har.  cif  M'Hen, 
Rep.  15L 

Under  the  Statute  of  Limitations  in  Connecticut,  an  9.c\\ox\oi  account  is  not  barred, 
not  being  considered  as  included  therein.  Pond  v.  Pond,  2  Root's  Rep.  41. 

Under  the  Statute  in  Pennsylvania,  an  account  between  factor  and  principal  is 
not  within  the  Statutr.  Stiles  v.  Donaldson,  2  Dall.  Rep.  264.  S.  C.  2  Yeates" 
Rep.  105. 

The  Statute  of  Limitations  will  not  bar  a  fiduciary  possession,  provided  it  be 
fiduciary  as  10  the  plaintiff,  or  those  under  whom  he  claims.  Spotsioood  y .  Dand- 
ridge  et  al.  4  Ben.  if  Mvnf.  Rep.  139.  Hvnter'sexrs.  v.  Spots-wood,  1  Wash.  Rep. 
181. 

Trusts  are  not  strictly  within  the  Statute  of  Limitations,  but  equity  has  adopted 
the  principles  of  thf  Act.  Wallace  et  al.  v.  Duffield  et  al.  2  Serg,  &  R.  Rep.  527. 
Et  vide  Barrisoii\   Harrison,  1  Call's  Rep.  428. 

In  general,  I  nglh  of  time  is  no  bar  to  a  trust  clearly  established  to  have  once  ex- 
isted ;  and  whire  no  fraud  is  imputed  and  proved,  it  ought  not  to  exclude  relief. 
Prevost  V.  Gratz   6  Wheat.  Rep.  497. 

The  Staiuti  rii'iS  from  ihv  d.iie  of  the  patent,  whatever  it  raay  be  before.  John, 
ston  V.  Irwin,  3  Seig^  £:?  R.  Rep.  291 . 

A  war  suspi-nds  the  operation  ot  the  Statute  between  the  citizens  of  the  two 
countries  for  the  time  during  which  it  coitinues.  Wall  v.  Robson,  2  JVott  & 
M' Cord's  Rep.i9S. 

The  presumption  of  payment  which  arises  from  lapse  of  lime,  does  not  arise  dur- 


STATUTE  OF  LIMITATIONS.  4g£ 

the  non -performance  of  a  duty,  they  cannot  be  revived  by  a  new  ch.  ii.  s.  3. 
damaffe  arisina:  to  the  plaintiff,  or  acknowledgment  by  the  de-  ,^'^^"**!  °' 

a  o  I  o  J    ^  LimilatKins. 

fendant.    As  where  the  defendant  sold  wheat  to  the  plaintiff  as  

ing  a  state  of  war,  in  which  the  plainlitf  is  an  alien  enemy.  Dimlop  v.  £all,  2 
Cra?ich's  Rep   180. 

A  IVaudulent  concealment  of  a  right  of  action,  is  a  bar  to  the  optration  of  the  Sta- 
tute of  Limitations.  First  JMass.  Turnpike  v.  Field  ttal.  oMasa.  Jifp.  201. 

So  in  Pennsylvania.   IFhartori'sexrs.  v.  Lowri-ij,  2  DM.  Rep.  364. 

In  JVorth  Carolina.  Siviat  v.  Arrington ,  2  Hag-w  Rep.  129. 

Where  the  defendant  detains  the  chattel  of  B.  the  act  will  run  only  fiom  the  time 
^.  knows  where  it  is.  Berry  \.  Pulham,  1  Haytu.  Rep.  16.  Elwick's  exrs.  v. 
Rush,  ibid.  28. 

The  Statute  will  not  operate  where  the  debt  could  not  be  ascertained.  Backus 
V.  Cleveland,  Kirb.  Rep.  36. 

But  in  an  action  of  assumpsit,  by  a  surety  in  a  bond,  who  had  paid  a  part  of  the 
debt,  against  the  principal,  the  Statute  of  Limitations  is  a  good  plea.  Penmmun  v. 
Vinton  et  al.  4  Mass.  Rep.  276. 

The  Act  ol  Limitations,  generally  spe:iking;,  will  begin  to  run  from  the  time  the 
cause  of  action  commenced.  Vance  v.  Grainger,  Rep.  in  Co.  of  Conf.  71.  Coomer 
V.  Little,  ibid.  92. 

It  was  from  the  time  the  subject  of  the  action  is  in  the  possession  ot  the  defendant, 
unless  intrusted  with  tliem  for  an  mdefinite  time,  and  then  only  from  demand,  unless 
the  plaintiff  did  not  know  of  the  di  ft  ndant's  bnving  it,  or  could  not  fin'l  him.  El- 
tvick's  cxrs.  v.  Rush,  1  Haytu.  Rep.  28.  FJmores.  Mills,ibid.  359  S.  P.  Avaunt  v. 
Sweet,  2  Bay's  Rep.  .'igS. 

If  a  trespass  be  begun  by  entering  on  lands  above  three  years  before  the  action, 
and  continued  till  the  action  of  trespass  is  brought,  as  the  action  is  founded  on  the 
first  tortious  entry,  the  Statute  will  be  a  bar.  Pitman  v.  Casey,  2  Haytv.  Rep.  293. 

The  Act  of  Limitations  cannot  be  pleaded  by  any  othei  pt  rson  ihan  the  deft'iid- 
ant ;  as,  for  example,  a  garnishee  cannot  plead  it.  Kennedy  v.  Fairmun,  1  Hayw. 
Rep.  459. 

When  the  plea  of  the  Statute  of  Limitations,  docs  not  state  when  the  cause  of  ac- 
tion accrued,  but  oi.ly  that  the  plai'tiff  canie  of  age  at  a  cerlwin  time,  and  did  not 
bring  his  action  within  ihree  yeSrs  of  that  time,  such  a  plea  will  be  held  bad  on  a 
general  demurrer.  Perkins  \ .  Turner  et  ul  1  Har.&  J\l  Hen.  Rep.  iOO.  Frank- 
Kn  V.  Exrs  of  Cump,  I  Coxe^s  Rep   196.     Sed  contra,  2  South.  Rep  377. 

In  an  action  oi'  assumpsit,  if  any  ariicles  be  within  six  years,  they  will  diaw  after 
them  the  articles  beyonil  six  years.    Cogswell  exi .  v.  Dolliver,  2  JHass,  Rep.  217. 

if  the  plaintiff  exhibit  an  accoint  ni  which  he  gives  credit  for  a?j  article,  within 
three  years,  and  the  defendant  claim  ami  endeavour  to  prove  it  to  be  of  more  value 
than  is  stated  in  the  Mcconnt,  it  will  take  th''  ivhole  of  the  plaintiff's  account  out  of 
the  Statute.  JVewsome  v    Person's  udm   2  Hayiv  Rep.  242. 

If  the  accounts  be  current,  the  Statute  will  only  operate  from  the  last  item  in  the 
account  current ;  but  if  they  be  separate  and  distinct  accounts,  they  will  not  have 
this  effect.  Kimboll  v.  Person's  adms.  ibid  394. 

By  twenty-one  years  possession  of  land,  k  right  of  potsesiion  is  acquired,  which  is 
not  otdv  sufficient  to  support  a  defence.  Iiul  is  a  positive  titi  •  under  wliich  one  may 
recover  as  plaintiff  in  ejectment.  Pedenck  v.  Searle,  5  Serg.  &  R.  Rep.  236. 

The  plf-aof  the  Statute  of  Limitations,  is  a"  issUHtib-  plen,  and  sometunes  an  lion- 
est  one.  Tomlin's  adm.  v.  How's  adm.  1  Gilmer's  Rep  1 

It  seems  that  the  Statute  of  Limitations,  in  regard  to  n  al  actions,  does  not  apply 
•o  actions  ot  dower.  Ilitcltcock  v.  Hnrrington,  6  Johns.  Rep.  290.  Sed  contra, 
MitcheU  v.  Poyus,  I  JVolt  ^  J[p  Cord's  Rep.  85. 


43a  ASSUMPSlt, 

Part  II.      spring  wheat,  which  the  plaintiff  in  consequence  re-sold  as  such, 
Liinit'ulons  ^'^^  ^^^  afterwards  obliged   to  pay  damages  recovered  against 

him  by  the  person  to  whom  he  sold,  the  Court  held  his  cause  ot 

action  to  have  arisen  at  the  time  he  discovered  the  wheat  to  be 
of  a  different  quality  from  that  for  which  it  was  sold,  and  not  at 
the  time  when  the  judgment  was  recovered  against  him  by  the 
(i)Batleyr.  person  to  whom  he  sold.(l)     So  where  an  atto.rney  being  em- 
b"&  A.  '288.  ployed  to  search  at  the  Bank  of  England,  whether  stock  was 
standing  there  in  the  names  of  certain  persons,  omitted  to  make 
the  search,  and  on  the  discovery  of  the  omission  six  years  after- 
wards, said  that  the  neglect  arose  from  the  omission  of  his  clerk, 
and  that  he  must  be  responsible,  it  was  held  that  the  cause  of  ac- 
tion arose  at  the  time  of  the   neglect,  and  was  not  revived  by 
^I'^ctrtliy^    the  subsequent  acknowledgment.(2)     But  in  cases  of  mere  debts 
3  8.  &  A.  626.  due  above  six  years,  a  promise  or  acknowledgment  of  the  debt 
by  the  defendant  within  that  time,  before  the  commencement  of 
the  action,  will  revive  the  debt.     Where  a  mutual  unliquidated 
account,  consisting  of  cross  demands,  is  subsisting  between  the 
parlies,  if  any  item  be  within  six  years,  this  prevents  the  opera- 
tion of  the  Statute  on  the  rest,  for  each  new  item  is  an  acknow- 
;  3)  Catling r.ledgment  that  the  account  remains  unsettled  :(3)    but,  if  the 
fiT^Rep^'isg  tlemand  be  all  on  one  side,  one  item  being  within  six  years,  will 
Crjiich  V.       not  take  the  others  out  of  the  Statute. (4)*     In  cases  where  the 
PcHkT's  Cas.  statute  has  operated,  a  very  little  matter  has  been  held  to  be 
J21.  sufficient,  and  the  slightest  acknowledgment,  whether  made  to 

(4)  Cotes w.    the  plaintiff,  or  in  any  dealings  with  a  third  person  in  which  he 
Harris,  Bui.   had  no  concern,(5)  will   raise  a  fresh  promise,  or  give  a  fresh 
cause  of  action.     Thus,  if  the  defendant  say,  "  prove  your  debt, 
(.5)  Mount-     and  I  will  pay  you  ;"(6)  or,  "  I  am  rea^y  to  account,  but  nothing 

Brooke,  .3  B. 

&  A.  140. 

(6)  Heyling         An  action  for  rent  reserved  by  indenture  of  lease,  is  not  withia  the  Statute  ofLi- 
■v.  Hastings,     mitations.  Bailey  v.  Jackson,  IG  Johns.  Rep.  210. 

aalk,  29.  j^  J^lussach\isetts ,  ihe  Statute  of  Limitations  does  not  apply  to  suits  in  the  Adrai> 

ralty,  for  mariner's  wages.  Broion  v.  Jones  etal,  2  Gallis.  Rep.  477. — Am.  Ed, 

•  The  exception  in  the  Statute  as  to  merchants  accounts  does  not  properly  fall 
within  the  plan  of  this  work,  which,  as  often  before  observed,  is  con6ned  to  the 
proof  required  in  actions,  and  is  not  intended  to  discuss  the  law,  further  than  is  ne- 
cessary to  point  out  the  ividence  required  ;  but  I  cannot  avoid  referring  the  reader 
to  the  very  elaborate  and  learned  note  of  Mr.  Serjeant  Williams,  on  this  subject, 
in  his  addition  (j(  Suwidevs,  vol.  ii.  p.  127.(c) 

(c)  In  JVexu  York,  the  exception  in  the  Statute  of  Linaitations  of  "  acHons  -which 
concern  the  trade  of  merchandise  bettveen  merchant  and  merchant"  extends  only  to 
open  accounts,  and  does  not  admit  of  a  greater  latitude,  than  has  been  given  to  the 
English  Statute.  Ramchander  v.  Hammond,  2  Johns.  Rep.  200, — Am.  Ed, 


STATUTE  OP  LIMITATIONS.  ^^ 

is  due  ;"(!)*  or,  "if  he  has  any  demand  on  me,  it  shall  be  set-  Ch.  II.  s.  s. 

-  -         .       _   -.  _     Statute  of 

limitations. 


tied  ;''(2)  or,  on  meeting  the  plaintiff  soon  after  the  delivery  of  ^Statuteof 


his  bill,  say,  "  you  have  made  an  extravagant  demand  ;"  without 

insisting  that  it  has  been  paid  ;(3)  or,  "that  he  was  "  surety  for(x)f,nd  ('2)  by 

another  neison  who  had  the  money,  but  that  he  is  willing  to  pay  L-^  M^^nsfield, 

half  of  it; '(4)  or  "  that  the  plaintiff  had  paid  money  tor  him  ^,  Femon, 

twelve  years  ago,  but  that  he  had  since  become  a  bankrupt,  by^°*P-  ^''^• 

-which  he  was  discharged  as  well  as  by  law  from  the  length  of  time  (s ;  Lawrence 

the  debt  accrupd  ;"(5)  or,  "  that  he  did  not  not  consider  himself  pp^J^",^'"^'^^ 

as  owing  the  plaintiff  a  farthing,  it  being  more  than  six  years  93. 

since  he  contracted  ;"(6)  or,  "  that  the  acceptance  was  in  his  ^4^  Yea,  bait. 

hand-writing:,  and  that  he  had  been  liable,  but  that  he  was  not^'-  Fouihker, 

so  then,  because  it  was  out  ot  date,  and  it  was  not  in  his  power 

to  pay  it  ;"(7)  all  these  being  acknowledgments  that  the  defen-(5)  Clarke  t. 

dant  was  once  liable,  and  that  there  is  an  unsettled  account  be-  3  Esp.  Ca's. 

tween  the  parties,  the  law  raises  a  promise  to  pay,  on  the  plain- 1^^- 

tiff  proving  the  existence  of  the  debt.     So  a  letter  written  by  (6)  Bryan*. 

the  defendant  to  the  plaintiff,  on  being  sued,  couched  in  ^^'bi- ^'^'^^^j"  y"g' 

guous  terms,  neither  expressly  admitting  nor  denying  the  debt, 

may  be  left  to  the  jury  to  consider,  whether  it  amounts  to  an^p.^jj^,^^^^"^^* 

acknowledgment  ;(8)  and  even  an  affidavit  made  for  the  express  16  East, 420. 

purpose  of  obtaining  leave  to  plead  the  Statute,  stating,  that /j^^  Hoyd  w. 

since  makine  the  bill  of  exchange  on  which  the  action  was  brought  M^und,  2T. 

.  Rep  760. 

no  demand  had  been  made,  may  be  so  left.(9)     But  if  the  de- 
fendant deny  that  anv  debt  was  ever  due,  as  if  he  say,  in  an  ac-  (9)  Ruoker 
tion  by  an  executor,  "  I  acknowledge  the  receipt  or  the  money,  4 East,  604,n. 
but  the  testator  gave  it  me  ;"(10)  this  does  not  take  the  case  out,,„>^ 
of  the  Statute.     Payment  of  interest,  by  one  of  several  makers  Wooiey,  Bui, 
of  a  joint  and  several  promissory  note,(ll)  takes  it  out  of  the  ^  ' 

Statute  as  to  all ;  and  it  was  in  one  case  holden,  that  if  one  be-  (11)  Whit- 
come  bankrupt,  and  the  creditor  prove  his  debt,  and  receive  a|'"[^  Dougl!' 
dividend  under  his  commission,  this  takes  it  out  of  the  Statute, 652. 
as  against  the  others  also  ;(12)  but  this  decision  has  been  recently  ^12)  Jackson 
overruled.(13Xc/j  *  IntltS^! 

, 340.  Budd.T'. 

„  ,         ,    ,      ,  ^     ,        ,  Birkenhead 

•  In  S-wan  v.  Soivel,  2  B.&  A.  759,  the  plaintiff  shi  wed  the  defendant  the  note  galk.  420. 
on  which  the  action  was  brought  within  six  years;  on  which  the  defendant  said, 
"  jou  owe  me  more  money,  I  havea  set-off  ajjainst  iioii :  BAiLETand  HoLnoTn  I.J.  (13)  Brand- 
(dissrntiente.  Best  J.)  held,  that  this  was  not  a  sufficient  acknowledgment  to  take '■^'"  Y,"*^^'' 
the  case  out  of  the  Statute.  ^^  4(53 

Acknowledgment  of  Debt. 

(</)Tbe  decisions'on  this  subject  are  not  only  numerous,  but  conflicting,  and  indeed 
present  more  incongruity  Uian  is  to  he  fou'id  on  any  other  br,iiich  ot  the  law.  By 
the  decision  of  Hudson  v.  Cary,  in  the  Supreme  C'omt  of  Pennsylvania,  March 


^^  ASSUMPSIT. 

Part  II.  The  plea  applying  to  the  time  of  the  commencement  of  the 

LtmUat'ions  action,  as  it  appears  on  the  declaration,  it  is  necessary   for  the 

_  plaintiff,  in  cases  where  the  promise  was  not   made  within  six 


Term,  18'24,  the  Ihw  is  iio\^  settled,  that  tlie  acknowledgment  of  the  debt  must  be 
such  as  IS  consistent  with  a  [iromise  in  pay. 

Where  the  maker  of  a  promissory  notp'denied  his  signature,  declaring  the  note 
to  be  2i  forgery  ;  but  said,  if  it  could  be  proved  that  he  signedthe  note  he  loould  pay 
it ;  and  it  was  proved  on  tht-  trial  that  he  did  sign  it,  this  was  held  sufficient  to  take 
tlie  case  out  of  the  Statute  ot  Limitations.  Seuwar'd  v.  IjOrd,  1  Greenl.  Rep   163. 

A  new  promist-  by  an  executor  or  administrator,  within  six  years,  takf  s  the  case 
out  of  the  Statute  of  Limitations,  as  well  in  an  action  against  the  aclminislrator  t/e 
bonis  71071,  as  against  th  •  original  executor  or  administrator,  who  made  the  promise. 
Emerso7i  v.  Thompsori  et  al.  16  Mass.  Rep.  429. 

If  a  man  acknowltflge  i\\e  principal  of  a  debt,  but  dispute  the  interest,  this  will 
take  the  cast-  out  of  the  Act.  Henwoodw  Clieeseinan,  3  Serg.  &  R.  Rep-  500. 
Et  vide  Pation^s  adm.  v.  Ash,  7  Si'rg.  cif  R.  Rep.  116. 

A  recital  in  a  deed  is  ^nod  eviilence  to  take  a  case  out  of  the  Statute.  JMarsteller 
et  al.  V.  M'l^an,  7  Crunch's  Rep.  156.  Et  vide  Mount  Stephen  et  al.  v.  Brooke 
3  Barn   &  Aid.  Rep   141. 

If  thi'  defendant,  alter  being  arrested  by  the  Sheriff,  promise  to  settle  with  the 
plaintiff  if  hi  will  give  time  for  payment,  it  is  a  sufficient  acknowledgment  to  take 
the  cast-  out  of  the  Statute.  4  Johns.  Rep.  461.  Morris's  les.  v.  Vanderen,  1  Dall. 
et  al.  Rep.  64. 

The  a(  knowledgmenf  of  a  debt  after  suit  brought,  takes  it  out  of  the  Statute. 
ibid.     Danforthv.  Culver,  11  Juhns.  Rep  146. 

A  bare  acknowledgment  of  a  debt  within  six  vears,  without  any  evidence  of  pro- 
mise or  intention  to  pay,  is  sufficient  »o  take  it  out  of  the  Statute  of  Limitations. 
Coiuan  V.  jitaganran,  1  TVidl.  Rep  66.   Cord  et  al.  v.  Shaler,  3  Con.  Rep.  131. 

What  will  amount  to  such  an  ack.owlt-dgmint  ?  ibid 

A  new  promise  to  pay  an  accoinit,  barred  h\  an  A<t  of  Assembly  in  Virginia  spe- 
cial in  its  provisions,  renews  the  obligation  to  pay.  Beall  v.  Edmondson, 'i  Call's 
Rep.  514. 

In  an  action  on  a  note  where  the  defendant  acknowledged  he  had  executed  the 
note,  it  was  held  suffieienl.  Billews  v.  Bogan,  I  Havw.  Rep.  13. 

A  person  having  wrilien  "  he  wr.uld  rather  come  to  a  S'ttlement,  although  he 
shoulil  allow  the  acr.oun'  as  insisted  on  by  the  plai  tiff,  than  wait  the  event  of  a  law 
suit  :"it  was  heM  sufficient  to  bar  ihe  Statute.   Ferguson  v.  Fitt.  ibid.  239. 

A  declaration  by  a  defendant  "  I  will  not  pay  it,  Rosser  ought  to  pay  it,  I  wilt 
speak  to  him  about  it,''  will  oar  the  operation  of  the  Statute.  Cobham  ass.  v.Moseh/, 
2  Hay-v.  Rep.  6. 

An  admission  by  an  executor  of  the  signature  of  ihe  testator  with  a  promise  that 
all  his  just  debts  should  be  paid,  will   have  the  same  effect.      Cobham  v.  • 

adins.  ibid. 

A  promise  in  these  words,  "1  will  settle  with  him,"  will  take  the  cause  out  of  the 
Statute.   Toomer  v.  Long,  ibid-  18. 

An  agreement  to  refer  the  matters  in  dispute  to  arbitrators,  will  take  the  case 
out  of  the  Statute  of  Limitations.     Colki7is  v.  T/iuckston,  Rep.  in  Co  of  Cenf  93. 

The  defen'lani's  admission  thai  he  had  given  such  a  note,  but  averring  that  he  had 
paid  it,  will  not  be  sufficient  lo 'ake  the  note  out  of  the  S'atute.  Srnithv.  Freel, 
Addis.  Rep.  '291      El  vi<le  Cadmus  v.  Dumon,  1  Cove's  R-p.  176. 

The  mere  aUmission  of  a  fact  which  shews  the  debt  to  Oe  uusatisfied  without  an 


STATUTE  OF  LIMITATIONS.  ^gg 

years  before  that  time,  but  where  a  writ  was  sued  out  and  re-  ch.  il,  s.  3. 
turned  within  six  years  after  the  cause  of  action  accrued,  to  J'S^,,^g. 
state  such  writ  and  the  day  it  issued  specially  in  the  replica- 
tion.'e) 

Where  there  have  been  more   writs  than  one,(l)  it  must  ap-(J^  Smith  t;. 
'    pear  that  they  are  regular  continuances  of  each  other,  as  a  /«/^-Rt^>.G62. 
tat  on  a  bill  of  Middlesex,  or  the  like  ;  for  an  attachment  of  pri- 
vilege would  be  no  continuance  of  a  common  writ,  being  process 
of  a  different  nature. 

To  this  replication  the  defendant  rejoins,  either  by  denying 
the  writ,  if  none  in  fact  issued,  ot;  stating  the  exact  day  it  was 
sued  out,  if  the  plaintiff  only  mentions  the  teste,  and  pleading 
that  he  did  not  undertake  within  six  years  next  before  the  suing 
it  out.     In  the  last  case  the  plaintiff's  evidence  will  be  the  same 

acknowltdg  ent  of  the  debt,  will  not  take  the  case  from  the  Statute's  operation. 
Fergusons    Taylor,  1  Hayw.  R^p.  20. 

Ill  Kentucky,  it  has  been  d-ci(!r'l,  ih-tt  to  take  a  casp  out  of  the  Statute,  an  ex- 
press acknowledgtnent  of  tlie  debt  as  due  at  the  time,  or  an  express  promise  to  pay 
it,  must  be  proved.  Bell  v    Jtowkvid,  Hiwdiii's  Rep.  301. 

Ill  this  case  th  t/oiirt  decl^r  d  many  of  the  English  cases  had  gone  unwarrantable 
lengths  to  evade  (he  Statute  of  Limitations.  Had. 

A  mi-ie  adniissioii  ot  a  debt  will  nol  chtirge  the  defendant  with  the  ivhole  of  the 
plaintiff's  demund,  hut  he  must  still  prove  its  amount.  Qitarlt's''s  adin.  v.  Litllejiage, 
2  //.  &  Mvnf.  Rep.  401. 

An  acknowledgnient  of  a  (Ie'>f  due  from  a  co-iiartnership,  mail'-  ^fter  its  dissolution 
by  one  of  the  partners,  will  bind  'h,  other  pHi-tn  r.  Smith  (tdm.  v.  Liidloiu,  0  Johm. 
Rep.  267.  S  F  Simpson  etal.  v.  Geddes,  2  Bny''s  Rep.  533.  Johnson  v.  Beardslee 
etal  15  Johns.  Reft.  3. 

In  Pennsylvmiia,  a  debt  barred  by  the  Statute  w  ill  not  be  revived  by  a  cbnise  in 
a  will  ordering  and  directing  that  all  the  testator's  just  debts  b^  paid  Smith  v.  Por- 
ter et  al   1  Binn  Rep.  209. 

So  ill  K''ntucky.  a  creation,  by  will,  of  a  trust  of  personal  estate  for  the  payment 
of  delits,  will  not  revive  a  debt  barred  by  the  Statute  of  Limitations.  Campbell  v. 
Sullivan,  Hnrdin^s  Rfp.  17. 

But  in  r?r,0H«a,  whi'ie  a  specific  fond  was  charged  by  a  testator  with  the  payment 
of  his  debts,  it  was  held  thai  the  Siatuti-  ought  not  to  prev'-nl  the  recovery  of  what- 
ever ri-niaine(t  of  the  sprcific  fund,  th'mgh  it  would  not  authorisf  a  recovery  out  of 
the  ^e?ier(ii  fund.  Le~iuis''>i  exr.  v.  Bacon,  3  //.  &  Jllunf.  Rep.  S9. 

In  a  case  somtwhai  analogous,  it  was  decided  in  I'vginia,  that  such  a  trust  estate 
would  only  extend  to  such  debts  asih<-  ti-stator  was  in  conscience  bound  to  pay,  and 
not  to  a  debt  which  was  merely  nudum  pactum.  Chandler  ex.  v.  Hiil  et  al.  2  //.  & 
Munf.  Rep.  124. 

Ill  JVorth  Carolina,  such  a  devise  was  held  lo  revive  a  debt  so  barred,  though  the 
Court  intim-lfd  the  rlecision  was  made  out  of  deference  to  the  anterior  decisions, 
and  not  upon  their  own  opinion  ol  its  propriety.  .Inonymous,  1  Hayvj.  Rep.  2i3. — 
Am.  Ed. 

(e)  The  plea  of  non  assumpsit  within  five  years,  without  saying  bi  fore  the  institu- 
tion of  the  suit,  will  rcf-r  to  th.    t'me  of  (leading.     Smith  v.  IVulk  r  exr.  I  fVush. 
Rep.  175.  Vide  Henderaon  v.  Foots,  3  Cairs  Rep.  2i8.— Am.  Ed. 
31 


4i36  ASSUMPSIT. 

Part.  IT.     as  if  he  had  traversed  the  plea,  except  as  to  the  time.    In  the 
L^miiaUons    ^^'^^''  ^  matter  of  record  being  put  in  issue,  namely,  the  suing 
forth  a  writ  duly  returned  and  filed,  the  Court  inspects  the  re- 
cord, and  gives  judgment  as  in  other  cases  on  the  plea  of  mil 
tiel  reco7'd.(f) 

The  plaintiff  may  also  reply  that  he  originally  commenced 

his  action  in  an  inferior  Court  within  six  years,  and  that  the  de- 

^^L?-J-"''^*^fendant  removed  it  by  habeas  corpus  :(l)  or  that  he  obtained  a 

V.  Philips,       .  ''  ■'.    .  ^,       . 

Saik  421.      judgment  or  an  outlawry  on  an  original  within  that  time,  which 
Gawer  v.       j^j^g  since  been  arrested  or  reversed, (2)  and  that  he  commenced 

James,  Bui.  ^  _  '^    ' 

N.  P.  151.  the  present  action  within  a  year  after  the  reversal.  So  if  a  man 
(2)  Finch  V.  commence  an  action  and  die  ;C3)  or  a  feme  sole,  after  tlve  com- 
Lambc,  Cio.  menccment  of  an  action  by  her,  marry,  whereby  it  abates,(4)  the 
Whitwickr.  executor  or  administrator  in  the  one  case,  and  the  husband  and 
Hovenden,  3  vvife  in  the  other,  have  a  reasonable  time  (which  is  generally  un- 
derstood to  be  a  year)  to  commence  a  fresh  action,  and  may  reply 
(^)^,*!''."'^''^Hhe  fact  to  a  plea  of  the  Statute.     The  defendant  may,  by  his  re- 

V.  Philips,  Ul    .     .        ,  „         '  ,  r     ,  ^  1  1       1  • 

sup.  joinder,  ot  course  deny  any  or  the  tacts  so  stated,  and  the  issue 

,..  p   ,         will  lie  on  the  plaintiff  to  prove  them,  either  by  proof  of  the 
Ld.  Middle-   matter  of  record  in  the  usual  way,  where  that  is  traversed,  or  by 
''59'  note^f'e )  V^^^^  ^^  *'^^  matter  in  pais,  before  a  jury,  where  such  matter  is 
put  in  issue.(g") 

(/)  Whep  the  Statute  of  Limitations  is  pleaded  in  bar  of  an  action  on  a  bail-bondj 
the  Court  will  admit  evidence  to  shew  I  he  exact  day  on  which  the  judgment  was 
eniere<l.   Clark  v.  Ely,  2  BooC's  Rep.  380. 

Where  the  record  of  a  judgmeiit  is  entered  generally  of  a  term,  and  it  becomes 
material  to  the  rights  of  the  parties  lo  ascertain  the  particular  day,  such  fact  may  be 
proved  by  evidence  aliunde.   Yoimg  v.  Kenyan,  2  Day^s  Rep.  252. 

Whenever  the  actualunxe.  of  suing  out  a  wiit  becomes  material,  it  may  be  shewn 
in  contradiciion  to  its  fictitious  test.   f-Vambough  v.  Schank,  Penning.  Rep.  2'i9. 

The  time  of  suing  out  the  writ  is  the  commencement  of  the  suit,  and  ilip  cause  of 
action  must  be  antecedent;  should  it  appear  otherwise  on  ll»e  face  of  the  proceed- 
ings, it  will  be  fwtal  in  a  special  demurrer.  Loiory  v  Laivre7ice,  1  Caines''  Rep.  C9. 
Hirdetal.  v.  Caritat,2  Johns.  Rep.  342.    Cheethamy.  Leivis,ibid.  104. 

A  promise  made  on  the  Isi  JVove^nber,  1811,  was  sued  on  the  1st  J\i'<jven;ber,  ISIT; 
and  it  was  holden  to  be  barred  by  the  Statute  of  Limitations.  Presbuy  et  al.  v.  JVil- 
liams,  15  Jllass.  Rep.  193. 

Where  an  information  for  an  offence,  by  reason  whereof  a  forfeiture  belongs  t» 
the  treasury  of  the  Slate,  was  presented  to  a  j'jstice  of  the  peace,  and  a  warrant  is- 
sued thereon,  wiihin  one  jear  from  the  commission  of  ihe  offence,  it  was  held,  the 
offence  was  not  barred  by  the  Statute  of  Limitations,  although  the  offender  was  not 
arrested, 'xarained,  or  tried,  until  after  the  e.\piration  of  the  year.  J\'eveU\.  The 
State,  2  Co7i.  Rep.  38. —Am.  Ed. 

(f )  If  the  action  be  brought  before  the  time  allowed  by  the  Statute  of  Limitations 
expires,  and  it  expire  during  the  suit,  the  Statute  will  not  operafte.  Hammond  \\ 
Benton,  1  H.  c^  M'Hen.  Rep.  200.  S.  P.  JJrow7i's  exs.  v.  Putney,  1  fFash.  Rep. 
390. 

W^here  a  plaintiff,  by  issuing  a  writ,  has  anTcd  the  bar  of  the  Statute,  and  the  writ 


STATUTE  OF  LIMITATIONS.  4,g7 

When  the  plaintiff  would  excuse  himself  for  not  commencing  Ch.  ii.  s.  3. 

Stulule  of 
Linaitaiions. 


iiis  action  in  time,  by  reason  of  liis  being  under  either  of  the  dis- 
abilities mentioned  in  the  Statute,  such  disability  must  be  spe- 
cially stated  in  the  replication,  and  it  must  be  added,  that  the 
action  was  commenced  within  six  years  after  the  removal  of  it; 
and,  if  the  disability  be  traversed,  the  plaintiff  must  prove  the 
existence  and  continuance  of  it.(A) 


has  not  actually  abated,  it  is  not  necessary  that  the  action  should  be  prosecuted 
within  a  year  after  the  six  years  expired.  Schlusfier  v.  Leshar;  I  Dull.  Hep.  411. 
Vide  Broitin's  exrs.  v.  Putney,  1  IVash.  Rep.  390. 

It  is  tiot  a  sufficient  replicHiion  to  the  plea  of  the  Act,  that  the  plaintiff  commenced 
a  previous  action  within  the  period  allowed  by  the  Act,  and  after  the  fxpiration  of 
the  time  was  nonsuited  by  order  of  the  Court.  Harris  v.  Dermis,  I  Sei-^.  &  R. 
Bep.  236. 

In  JIfarytet/ it  has  been  ruled,  that  where  an  action  has  been  brought  in  due 
time  afti-r  the  reversal  of  a  judgment  for  the  saint-  cause  of  action,  it  is  saved  by  the 
clause  in  the  Statute.  Drane  v.  Hodges,  I  H  &  j[£He?i  Rep.  518. 

The  operation  of  the  Statute,  will  not  be  prevented  by  a  scire  facias  sued  out, 
•within  the  five  years  on  which  (he  plaintiff  suffered  a  non-suit.  Peyton's  adm.  \. 
Carr's  exr.  1  Randolph's  Rep.  436. 

If  a  suit  be  commenced  withui  the  time,  and  there  is  a  nonsuit  after  the  time  of 
the  Statute  has  expired,  the  plaintiff  may  sue  again  within  twelve  months  under  the 
the  Statute,  and  then  only  the  time  elapsed  before  the  first  action  will  be  counted. 
Ano7iymous,  2  Hayiu.  Rep.  63. 

If  an  action  abate  or  otherwise  go  off,  and  be  not  re-commenced  within  a  year,  all 
the  time  of  its  pendency  will  be  counted,  ibid.  Pearce  v.  House,  ibid.  386, 

A  writ  taken  out  against  one  administratoi'  where  several  are  appointed  and  duly 
qualified,  is  null  and  void,  and  will  not  prevent  the  Statute  of  Limitations  from  run- 
ning against  the  debt.  Hopkins  v.  J[l-Phcrson''s  adms.  2  Hay's  Rep.  194. 

A  second  writ  against  allthe  administiaiors  alter  a  rtiscoiitinuancc  of  the  first,  will 
not  cure  the  defect  where  the  Statute  has  run  before  the  lodgitvg  of  the  writ  in  the 
Sheriff's  office,  ibid. 

In  JVev>  York  it  is  doubted  whether  another  action  can  be  maintained,  instituted 
directly  after  a  previous  action,  under  a  Statute,  wiiliin  its  time,  has  abated  by  the 
death  of  the  defendant,  who  dies  after  the  five  years  have  expired.  Jackson  ex.  d. 
Frost  \.Horton,  3  Caines''  Rep.  197. 

If  the  plaintiff  would  avoid  tlie  Statute  of  Limitations  by  a  former  suit  being  com- 
menced, he  may  plead  the  former  suit  specially,  and  cannot  give  it  in  evidence  un- 
der the  geni'ral  issue.  Bogle  v.  Co7iiuay,  3  CaWs  Rep.  1. 

The  purchaser  of  a  chose  in  action  sues  first  in  Ids  own  name,  is  nonsuited,  and 
then  suts  in  the  name  of  tli'  vendor  ;  th«  former  suit  will  not  buspend  the  Act  of 
Limitations  as  to  \hf  present  plaintiff,  bicause  there  is  no  privity.  Halsey  v.  Hulk- 
ky,  2  Hayv>.  Rep.  234.— Am.  Ed. 

[li)  The  exceptions  in  tlie  Statute  of  Limitations  will  not  be  extended,  by  construc- 
tion, to  cases  within  the  reason,  but  not  within  tti.,  letter  of  the  exceptio:is.  Sacia 
V.  De  Graaj,  1  Cowen's  Rep.  350. 

If  one  ot  the  persons  against  whom  a  decree  is  given  be  an  infant,  his  infancy 
■will  prevent  the  Statute  of  Limitations  from  barring  thosf  who  must  necess;iril\  joia 
■with  such  infant  in  a  writ  of  error  to  reverse  the  decree.  Kennedy  v.  Duncan, 
Hardin's  Rep.  365. 

The  terras  *'  beyond  seas,"  m  the  proviso  of  the  Statute  qf  Limitations  of  Gear- 


^^g  ASSUMPSIT. 

Phi t  II.  The  plea  of  tender  goes  only  to  defeat  the  plaintiff's  right  to 

Teiifler.      costs,  and  therefore  the  defendant  \Vho  pleads  it,  is  always  oblig- 

^—~—~-—  eti  to  pay  into  Court,  for  the  use  of  the  plaintiff,  as  much  as  he 


tia,  are  equivaleni  to  -tvithout  the  limits  oj  the  State,  whc-re  the  Statute  is  enacted  ; 
and  the  part)  wiihoiii  iliose  liimts,  is  tntitlt-d  to  the  benefit  of  the  exct-ptioii.  ^Mur- 
ray's lea.  V.  Baker  et  cil.  3  tf  heat.  Hep.  541. 

And  so  '>{  the  Statute.  21  James  I  eh.  16.  Pancoast's  les.  t.  Addison,  1  Har.  & 
Johus.  Rep-  350. 

In  Connecticut,  an  absence  at  Halifax,  without  the  jurisdiction  of  thi^  United 
States,  is  not  6f^o7«i  seas  within  tiie  meaning  of  the  Statute.  Gustin  y.  Brattle, 
Kirb.  Rep.  -299. 

In  Pennsyhonia,  a  debt  due  from  a  person  residing  in  South  Carolina,  was  h*  Id 
to  be  barred  if  btyond  the  time  allowed  by  the  Statute.  Ward  v.  Hallam,  2  Dull. 
Rep.  •iU. 

But  ni  JMaryland ,  it  has  been  ruled,  that  a  residence  in  Virg^ima  is  being  beyond 
sea,  so  as  lo  coni<r  within  the  exception  of  the  Statute.  Brent's  les.  v.  Tasker,  I  H. 
Sjf  Mllen.  Rep.  89. 

This  lioubt  has  been  obviated  in  JMussnchusetts  by  a  legislative  provision  making 
the  t  xce|rtion  to  being  out  of  the  limits  of  the  Comtnonivealth.  White  v.  Bailey,  3 
Muss.  Rep.  271. 

The  same  provision  appears  to  have  been  made  in  JVew  York.  Rjiggles  v.  Keel- 
er,  3  Johns  Rep.  263. 

The  Staiut<'  will  run  only  from  the  time  of  obtaining  letters  of  administratioD. 
Tyson  v.  Simpson,  2  ffayiv.  Rep.  147. 

As  to  tins  rule  in  Virginia.  Vide  Oswald  v.  Dickinson,  2  CaWs  Rep.  16.  Faxv 
V.  Jioberdeau's  exr.  3  Cranch\s  Rep.  174. 

Tfie  Statute  will  not  run  in  time  of  the  revolutionary  war.  Fuller  v.  Hancock,  1 
Root's  Rep.  238. 

In  ;.n  action  commenced  in  JMcssachtisetts,  the  Statute  of  JWw  York  cannot  be 
pleaf'ed  in  bar  of  an  action  commenced  in  ^Massachusetts,  liy  inhabitants  of  JVewYork, 
Upon  a  not  executed  in  A'e-w  York  by  citizens  of  JMassuchusetts.  Pearsall  et  al. 
V.  Bivight  et  ul.  'ZJfass.  Rep,  84. 

Fort  igners  who  never  have  been  in  th.'  United  States,  are  within  the  exception 
of  the  Statute  for  the  limitation  of  personal  actions,  and  may  bring  their  action  within 
tlie  time  limitf  d  h\  the  Statute,  aftei  their  coming  within  the  State,  ffall  v.  Idt' 
tle,UJlass.  Jiep.'203. 

In  an  viction  of  ussufnpsit  brought  in  ATew  York,  the  defendant  may  set-off"  de- 
raands  against  the  plaintiff,  arising  when  bmh  (larties  resided  in  Connecticut,  and 
•which,  if  sued  in  Connecticut,  would  be  barred  by  its  Statute  of  Limitations,  pro- 
vided six  years  have  not  elapsefl  smce  the  plaintiff  came  into  the  State  of  JVew  York, 
Svggles  v.  KeeJer,  3  Johns.  Rep.  263. 

Courts  in  one  Slate  are  not  governed,  in  actions  on  foreign  contracts,  by  the  Sta- 
tute  of  Limitations  of  thosf  other  States  where  such  contracts  were  made.  ibid. 

The  saving  of  iht  St^uuie  includes  as  well  foreigners  who  have  resided  altogether 
out  of  the  State,  as  citiz  ns  of  the  State  who  may  be  absent  for  a  time.  ibid. 

A  contract  made  in  a  for-  ign  country  is  subject  to  the  Statute  of  Limitations  of 
the  Slate  where  the  suit  is  bifingbt.     Kminedy  v.  Fairman,  1  Huyxv.  Rep.  459. 

The  return  of  a  debtor  to  lie  Stale  to  enable  the  Statute  of  Limitations  to  ruo 
must  be  such  a  it  turn  as  will  enable  the  creditor,  by  reasonable  diligence,  to  arrest 
bis  body  as  security.     White  v.  Bailey,  3  .IJass.  Rep.  271. 

The  Act  of  Limitations  in  Virginia  begins  to  run  against  a  creditor,  residing  out 


TENDER.  A&n 

admits  to  be  due  ;(1)  and  cannot  plead  the  general  issue,  to  the  ch.  ii.  s.  s. 
same  part  of  the  declaration  as  that  to  which  he  applies  his  ten-      Tender. 
der  ;  but  can  only  plead  a  tender  as  to  part  of  the  damages,  and 
the  general  issue  as  to  the  residue. (i)     The  plaintiff"  may  tra-  i.  Hntard,^4 

T.  llei..  194. 

of  the  State,  it' he  corae  i?)tothe  State  fortempoiai-y  [)urposes,  prDvidtd  the  debtor  be 
attht?  time  within  tlie  Con  monwt  alth.  Finuv.  Roberdeau''s  exr.  SCraiich's  Rep.  174. 

IF  a  conti'MCt  is  maile  in  S.  CaruUna^  with  the  view  to  the  receipt  of  inom  y  ia 
Pennsylvania,  the  cause  ol  action  accrues  upon  tlif  receipt  of  ilie  money  in  Penn- 
sylvania, and  the  Statute  ot  Limitations  of  S.  Carolitia,  is  not  a  bar  to  the  action. 
Harper  v.  Hampton,  I  Har.  &  Johns.  Rep.  453. 

When  the  Statute  once  begins  to  operate,  its  effect  does  not  cease  by  the  interven- 
tion of  any  subsequent  legal  disability.  Peck\.  Trustees  of  Randall,  \  Johns.  Rep, 
165  Rogers  v.  Hill,  3  Hon  Rep  398.  Fitzhugh  el  al.  v.  Jlndersonet  al.  '2  H.  SJ 
Mvnf.  Rep.  289.  Faysonx  et  al.  v.  Prather,  1  JVott  &  M-  Cord's  Rep.  '296.  Waldcn 
V.  The  Heirs  of  Grutz,  1  Wheat.  Rep.  292.  I)en  ex  d.  Amlre-ws  v.  Mulford,  I 
Hayw.  Rep.  311  Anon.  ibid.  416.  Kennedy  &  Co.  v.  Fairmuji,  ibid.  459.  Cob- 
ham's  ass.  v.  JYeill,  2  Do.  5.     Pen  ler  v.  .Tones,  ibid.  294. 

In  an  action  on  a  promissory  note  made  in  Connecticut,  our  Statute  of  Limitations 
may  be  pleaded  in  bar.     jSi'ashy.  Tapper,  1  Ctdnes'  Rep.  402. 

It  is  a  good  plea  in  bar  to  an  action  on  a  judgment  given  in  another  State.  Hub' 
hell  V.  Coudrey,  5  Johns.  Rep.  132.     Bissell  v.  Hall,  11  Do.  J68. 

A  creditor  in  a  foreign  country,  having  an  agent  here,  is  not  therefore  within  the 
Statute  of  Limitations.     Wilson  v.  Jlppleton,  \7  Mass.  Rep.  180. 

If  the  defendant  plead  the  Statute  of  Limitations  in  bar  of  a  suit,  a  replication  that 
the  plaintiff  was  within  one  of  the  exceptions  of  the  Statute,  is  good.  Perkins  v. 
Burbank,  2  Muss  Rep  81. 

The  Statute  of  Limitations  of  another  State  cannot  be  pleaded  in  bar  to  an  action 
commenced  in  a  Court  in  this  State  by  an  inhabitant  of  such  other  State,  on  a  note 
then  executed.     Pearsall  et  ul.  v.  Dwight  el  al.  2  JVTase   Rep.  84- 

In  chancery,  if  the  defendant  in  equity  plead  the  Siatut'-  of  Litnitations,  and  the 
complaint  come  within  any  of  the  exceptions  in  the  Act,  he  will  not  be  entitled  to 
the  benefit  tbeieof,  unless  he  set  it  forth  by  a  replication.  Lewis  exr.v.  Bacon,  3  //. 
&jMtinf.  Rep  89. 

It  is  a  good  plea  to  a  suit  in  equity,  brought  to  recover  money  collected  by  an  at- 
torney, for  the  plaintiff,  and  not  accounted  for  by  him.  ICinney's  exrs.  v.  JW  dure, 
1  Randolph's  Rep.  284. 

Vide  ante,  p.  51,  n.  (y)  as  to  bonds,  and  post,  Ch,  X. — Am.  Ed, 

Tender. 

(j)  If  there  be  a  promise  to  deliver  ceriiin  articles  at  a  certain  dav,  and  no  place  be 
mentioned  in  the  note,  the  creditor  has  the  right  of  appointing  the  place.  Aldrich 
T.  Albea,  1  Gree7d.  Rep   120. 

A  plea  of  ti-nderof  specific  articles  must  stale  that  they  were  kept  ready  until 
the  uttermost  convenient  time  of  the  day  of  paymeni.  ibid. 

In  an  action  on  a  promise  to  deliver  certain  ariicles  at  a  given  day  and  place, 
it  is  a  good  bar  that  the  df-lendant  was  ready  al  the  day  anil  place,  to  deliver  the  ar- 
ticles.    Robbing  v.  Luce,  4  Mans.  Rep.  474. 

But  if  the  delivery  or  tender  of  ihe  thing  be  prevented  by  any  contrivance  or  eva- 
sion of  ihe  r.iher  parly,  it  will  be  equivalent  to  a  lender.  Borden  v.  Jiorden,  5 
Muss.  Rep  67      Frazier  v.  Cunhiwin,  12  Do.  277. 

There  is  a  difference,  as  to  tender,  between  portable  and  cumbersome  articles  : 


Tender. 


430  ASSUMPSIT. 

Partn.     verse  both  the  tender  and  the  general  issue,  and  then  it  will  be 

incumbent  on  him  to  prove  that  the  defendant  was  indebted  to 

'  him  in  a  larger  sum  than  he  admits,  and  on  the  defendant  to 

■with  respect  to  the  former,  a  personal  tender  is  necessary  ;  as  to  the  latter,  it  will 
be  sufficient,  if  the  r)ef(  ndaiit  offVr  to  delivjT  as  the  plaintiff  shall  direct.  Coit  v. 
Houston,  3  Johns.  Cas.  243.     S.  P.  Sliugeilund  v.  JMorse  et  al.  8  Jiihns.  Rep    3"0. 

A  leniler  on  a  bond  with  a  penalty  dots  not  bar  au  action  on  the  bond.  JMannv 
V.  Harris,  2  Johns.  Rep.H: 

Tenders  arc  stricti  juris,  and  never  are  supplied  by  equity,  ^irroivsmith  et  ux. 
V.  Van  Harliiigen^s  exrs.'l  Coje's  Rep.  26.   Shotwell's  exrs.  v.  Bmman,  ibid.  174. 

It  is  a  general  rule,  that  a  tend>  r  must  bf-  made  unconditional,  and  must  be  al- 
wavs  of  a  definite  and  cert?''n  character.  Eastland  v.  Longshom  et  al.  1  Mott  c5 
M' Cord's  Rep.  195. 

A  tender  cannot  be  made  after  the  commencement  of  the  suit.  Fishbume  exr. 
V.  Sanders,  ibid  243. 

Nothing  but  gold  or  silver  ts  a  legal  tender  under  the  Constitution  of  the  United 
States.    M'C/arin  v.  A'esbit  2  Do.  519. 

Treasury  notes  issued  under  the  \ct  of  Congress  of  1814,  ch.  77,  and  629,  being 
by  their  laws  receivable  in  payment  of  duties,  taxes,  and  land  debts,  due  to  the 
United  States,  i'ov  the  principal  and  in'^rest  due  thereon,  are  a  goml  tender,  and 
may  be  pleaded  as  such  to  such  debts.      Thomdikey.  U.  States,  2J\lason's  Rep.  1. 

A  tender  to  one  of  several  joint  obligees,  is  a  tender  to  all.  JVarder  et  al.  v. 
Arell,  2  Wash.  Rpp.  359 

To  make  a  tinder  good,  the  parly  must,  at  the  latest  time  of  the  last  day  of  the 
term  of  the  cnntiact,  before  su;.  set,  proceed  to  the  place  of  abode  of  the  party  if  no 
place  be  fixed,  and  thTe  proriiic  fh'  money  ov  goods ,  and  offer  to  comply  with  the 
contract.  Morton  \.  Wells,  1  Tyl.  Rep.  381. 

If  the  adverse  party  be  absent  or  rt^fuse  wh^n  present  to  receive  the  money  or 
goods,  or  is  incapable  of  pt--forming  the  contract,  the  other  need  not  count  the  mo- 
ney, nor  display  partic\ilarl\  the  goods  if  he  can  shew  otherwise  that  he  has  ten- 
dered the  anviuiit.  ibid.  Slingerlmid  y .  ^Morse  et  al  8  Johns   Rep.  370. 

AVhere  .4.  shipped  goods  by  the  m  ister  of  a  vessel,  and  the  consignee  assigned 
the  bill  of  lading  to  C.  wli:)  demanded  the  goods  and  tendered  a  sum  of  money  for 
the  freight,  but  whether  ei  ough  did  not  appear  ;  the  master  refused  to  deliver  the 
goods,  assigning  as  a  reason,  orders  from  the  ship  owners  not  to  deliver  them,  but 
made  no  objection  to  the  tender  of  the  freight ;  in  an  action  of  trover  against  B.  it 
-was  held  he  had  waited  ai^v  tender  ol  fi eight,  and  that  his  refusal  was  evidence  of 
conversion.  J.ulah  etiil.  >   Kemp,  2  .To/ins.   Cas.  411. 

Where  a  promissory  iioie  was  given,  payable  in  produce,  Xo  be  delivered  by  a 
certain  day,  at  the  maker's  house  ;  in  an  action  on  the  note  the  defendant  pleaded 
payment,  and  proved  that  he  had  hay  in  his  liarn,  readj  to  be  delivered  on  the  day 
to  the  plaintiff,  but  did  not  shew  ihe  quantity  or  value,  it  was  held  that  there  was 
no  proof  of  a  tender  or  payment.  JVewton  v.  Galbraith,  5  Johns.  Rep.  119. 

A  mere  offer  to  pay  ih^  money,  is  not  m  legal  strictness  a  tender.  Sheredine  v, 
Gaul,  2  Ball.  Rep.  190.  S   H.  Searight  v.  Cnlbrcdth  et  al.  4  Ball.  Rep.  325. 

A  person  making  a  tender  cannot  insist  on  a  r-  ceipt  iu  full  of  all  demands ;  but 
he  must  rely  on  th.  tender,  and  ou  proof  at  the  trial,  that  no  more  was  due.  Tlmyer 
V.  Brackett.  \2Mass.  Rep.  450. 

In  A'ortk  Carolina.  J\'orth  et  al.  v.  Mallett,  2  Hayiv.  Rep.  152. 

Where  money  is  to  be  paid  in  goods,  a  tender  of  all  the  articles  must  be  proved, 
not  of  some  only  enough  in  virtue  to  discharge  the  debt.  Thompson  v.  Gaylard, 
ibid  150. 

Whea  a  specific  article  is  to  be  delivered,  aud  no  place  appointed,  the  debtor 


TENDER.  4,3£ 

prove  his  tenfler*     If  the  plaintiff  fail  on  the  first  issue,  the  ten-  ch,  II  s.  3, 
der  will  be  the  only  nsatter  in  dispute,  and  to  support  this,  the     'i'ender. 
defendant  must  prove  that  he  offered  to  pay  the  money,  either  ^— — -" 


must  give  iiotici'  of  his  ivailim  as  to  pay  on  the  day,  and  request  the  creditor  to  ap- 
point a  place  whert-  hi-  will  tcceive  it ;  and  on  tlie  day  ht  must  attend  until  sun  set 
to  'ijuke  th>-  (!"liTery,  uiil'-'^s  the  creditor  refuse  or  accept  before.  England  v.  With- 
erspooti,  1  Hay-v.  Erp  361. 

And  so  in  tlie  pleii  tli  lont.  Jo7iet  v.  Wagner,  2  Bibb's  Rep.  269.  Colyerv. 
IIutchings''s  exrs.  ibid.  4t>4. 

Wiiere  a  man  is  to  'leliver  properly  at  a  valuation,  he  is  not  bound  to  carry  the 
property  to  the  creditor,  hut  the  latter  must  receive  it  at  the  debtor's  house.  Dand- 
ridge  v.  Harris,  1  JVaxh.  Rep.  422. 

In  the  case  of  a  tender  of  mo7iey  it  should  be  pleaded,  and  the  money  brought  into 
Coiu-t.  Sheredine  v.  Gaul,  2  Dak.  Rip.  190. 

If  a  man  be  bound  to  do  a  thin,^,  ht;  must  <-ither  do  it,  or  offer  to  do  it ;  if  no  ob- 
jections are  made,  he  must  shew  that  h<-  m:ide  (he  tender'  in  a  regular  manner;  but 
it  is  not  necessary  if  the  oth.-r  party,  by  his  conduct,  dispense  with  a  regular  tendev 
by  a  previous  refusal  to  accept  it.    Blight  v.  Jishley  et  al.  1  Peters''  Rep.  24. 

A  party  who  has  a  right  to  ohjict  to  a  tender,  is  not  precluded  from  availing  him- 
self of  this  objection,  by  the  ciicumstHnce  that  his  iTiotive  for  objecting  was,  not  the 
tender,  but  a  desire  on  other  grounds  to  get  rid  of  the  contract.  Decamp  v.  Feay, 
5  Serg.  &  R  Rep.  823. 

The  effect  of  a  tender  is  not  to  rxtingujdh  the  right  of  action,  but  only  to  preclude 
a  claim  for  interest.  Raymond  et  al.  v.  Bearnard,  12  Johns.  Rep.  274. 

If  a  legal  tender  is  made  of  the  luonej  due  on  a  bond  and  mortgage  to  the  mort- 
gagee, or  his  assignee  or  attorney,  which  is  refused^  the  land  is  discharged  from  the 
mortgage,  though  the  debt  remains.  Jackson  ex.  d.  Botaers  v.  Crafts,  18  Do.  110. 

A  tender  of  a  bond  of  indemnity,  after  action  brought,  is  insufficient  where  indem- 
nity is  necessary  to  plaintiff's  recovery.  Harper  v.  Hampton,  1  Har.  &  Johns.  Rep. 
719. 

If  a  vendor  had  not  the  title  at  th»  sale,  and  defends  Under  the  pl-'a  of  tender,  he 
must  shew  that  he  had  acquired  the  title  before  the  tender.  Bnrchv.  Young,  o 
Marsh.  Rep.  418. 

So  in  another  case  the  Court  said  a  plea  of  tender  should  be  accompanied  with 
bringing  the  mow«^  into  Court,  otiuM-wise  the  plea  is  a  -lullity,  and  it  would  seem 
that  the  plea  shouKi  state  the  kind  of  money.  Dnianman  v.  Doiunman's  exrs. 
1  Wash.  Rep.  34.    Clapn  v.  //twt-.v,  8  ""f.    .?.  Rep.  261. 

It  seems  however,  that  machines  a  .d  other  [.,ol:- ponflerr,:!.s  in  their  nature,  need 
not  be  brought  into  Court  by  tlr  defendant.  Shotivell  v.  Wendover,  1  Johns. 
Rep.  64. 

A  lender  must  be  strictly  proved,  tlr.  ..Tire  in  an  action  on  a  promise  to  deliver 
a  quantity  of  boards  at  a  cei  tain  time  ai  d  place,  the  defendant  pleaded  he  had  the 
boards  at  the  time  and  place  ready,  &c.  it  being  proved  that  boards  of  sufficient 
quantity  and  v^lue  were  at  th''  place  and  time,  wil;  not  be  suliioient,  if  the  witness 
do  not  know  to  whom  th^y  belonged.   Cobb  v.  Williams,  7  J'lhns.  Rep.  24. 

In  a  pli-a  of  tender  of  goods  ujion  an  obligation,  they  must  bf  p^n■ticul^rlv  de- 
scribed so  that  they  may  be  identified.  Mchols  v.  Whiting,  1  RooVs  R^.p.  443. 

A  tender  (if  h-gal)  vests  the  prop<-rty  in  the  party  to  whom  'hegootls  arf  tendered, 
therefore  if  the  partv  to  whom  they  are  tendered,  at  first  ."efuse  to  receive  them, 
afterwards  demand  ihem,  and  ttiey  are  not  given  y\\\  t'l  hiin,  he  may  bring  an  actioD 
of  trover  for  such  g(  ods.  Rex  -> .  Htvong,  i'nd.  .05 

As  upona  plea  o'  tenrh-r,  ifie  ou'-y  musi  ■,  aw  -.iccomii  i  y  tli-  ple»  ;  the  defend- 
iiil  in  a  subsequent  suit,  may  plead  the  leader  of  money  into  Court  iu  iJieyi?"*f  suit,. 


4,33  ASSUMPSIT. 

Part.  II.     to  the  plaintiff  or  an  agent  who  was  authorised  to  receive  pay- 

Tendtr.     nient,(l)  and  had  it  with  him  to  pay.     If  the  plaintiff  make  no 

""""  objection  to  receive  it,  the  defendant  should   put  it  down  for 

t).  Blew  it  u"    '^'n™>  f^*"  holding  it  in  a  bag  under  his  arm  is  not  sufficient  ;(2) 

iCampb.477.  but  if  the  plaintiff  refuse  to  receive  the  money  tendered,  con- 

(2)  Vide  B.  tending  that  more  is  due,  he  cannot  afterwards  object  to  the  for- 
N.B.  151.      tnality  of  the  tender.     Thus,  though  a  person  must  regularly 

(3)  Wright  r. tender  wTOWfj/,  and  not  bank-notes,(3)  SLnd  the  exact  sum  with- 
Re  "'554^  out  asking  for  change, (4)  or  a  receipt  ;(5)  yet,  if  when  such  in- 
2B.  &P.52G.  formal  tender  is  made,  the  creditor  does  not  object  to  receive  it 
r4^  Black  r-  ^'^  ^^^^  account,  but  on  account  of  more  being  due,  he  will  not 
Smith,  Peak,  afterwards  be  permitted  to  object  to  it  on  the  trial. (6)  And  even 

if  the  cash -notes  of  a  country  bank  are  tendered,  and  no  objec- 
(5)Coiet>._  tion  is  made  on  that  account,  the  tender  will  be  deemed  suffi- 
Sed  vide  'cient.(7)  So  where  the  defendant's  agent,  having  taken  out  his 
Giascoi  r.  pocket-book,  offered  to  pay  the  plaintiff's  debt  if  he  would  go  to 
Cas.'48, and  a  neighbouring  public  house,  and  the  plaintiff  refused,  this  was 
Huxhamr.  j,p[jj  g^  p-Qod  tender.(,8)  But  in  all  cases  it  should  appear  either 
Smith,  »  ,  ,  1  ,  1-  1 

sCarapb.  21.  that  some  money  was  produced,  or  that  the  creditor  expressly 

f6^  See  the     ^^^^  ^^  would  not  recciv*  it..^ 

above. cases.  But  these  are  not  the  only  replications  that  may  be  made  to 
(71Lockyerr  this  plea;  the  plaintiff  may  reply  a  special  demand  by  him,  and 
Jones, Peak  refusal  bv  the  defendant  to  pav  at  any  time,  either  before  or 
3ded.  239.  Subsequent  to  the  time  of  the  tender,  for  if  the  defendant  has 
ever  refused  to  pay  the  money,  his  tender  will  not  avail  him;(10) 

(8)  Reed  w.  '    •'  •'  ^      '' 

Golding,2  M. ^ ■ 

&{.  S.  8b.  ajj()  prove  the  payment  to  the  cU-rk,  which  if  found  in  the  defendant's  favor,  will 

,r,y  T^-  1  •  draw  alter  it  a  iud;  ment  for  the  defendant.  Robinson  v.  Gainen,  3  CaU''<  Rep.  243, 

(9)  Dickinson  -"  . 

V.  Shee   4  The  advantnge  to  defendant  of  the  plea  of  tender,  will  be  taken  away  by  a  siibse- 

Esp.  Cas.  67.  quent  demand  from  the  plaini  iff  and  a  retusal   by  the  defendant.    Rose  "s .  Broitni, 

Kirb.  Rep.  295. 
()^)  'i'l^^'^'-       I'l  J^'e^  York.  Manny  v.  //r;rm,  2  Johns.  Rep.  24. 

622  'l  Ld*  Whether  in  the  prot<  st  of  a  bill  of  e.xchange,  the  protest  will  be  evidence  of  the 

Rav.  254.  legality  of  the  money  tendei-ed  as  paynientof  the  bill.  Seanght  v.  Calbraiih  el  al. 
S,  C'.        '  4  Dail.  Rep.  327. 

Vide  Mumford  v.  Wright  et  al.  Kirb.  Rep.  298    Place  v.  Lyon.  ibid.  404,  as  to 

proof  of  a  tender  under  pariieular  Statutes.  El  vide  Johnson  v.  Hockf-r,  1  Dull.  Rep. 

406,  in  Pemisylvunia. 

The  defendant  niay  give  in  evidence  a  lender,  under  the  ple»  of  payraent,  in  an 

action  of  debt  oi.  a  bill  of  exchange,  to  extinguish  the  interest.  Skiptvithv  JVtorton, 

2  Call's  Rep  '277. 

In  Conneciicni,  under  their  Statute,  if  the  defendant,  on  being  arrested,  shew 

the  officer  property  to   levy  his  execution  upon,  which  apparenth   is   not  sufficient 

to  discharge  it,  such  a  tender  will  not  make  the  officer  a  tri  spasser.     Gilbert  v.  Iti' 

der,Kirb.  Rep.  130. 

So  by  the  common  law  of  that  State,  a  tender  after  the  •■ta>  of  pa'  me'it,  if  pro- 
perly pleaded,  and  pursued  up,  is  a  defence  to  the  action.  Tracy  v.  Utrong,  2  Con. 

Rep.  659. 


INFANCY, 


4<33 


and  for  this  reason  a  tender  after  the  day  of  payment,  in  a  bill  ch  ll.  s.  s. 
of  exchange,  is  no  bar  to  the  action.(l)     If  this  demand  and  re-     'i''-n<'«'''- 
fusal  be  traversed,  the  issue  will  of  course  be  on  the  plaintiff  to  . 

I  All-  I  •  -.111  vO  H>'i(ii  "u. 

prove  it;  and  to  support  the  issue  on  his  part,  it  will  be  neces- p,.pi,,e, s 
sary  for  him  to  shew  that  the  demand  was  of  the  sum  tendered, ''^•'^'>  ^"^S, 
for  if  the  defendant  tender  5/.  the  plaintiff  cannot  avoid  the  ef- 
fect of  it  by  afterwards  demaniling  10/.C2^     The  demand  uiust(2)  Spvbey 
also  be  made  either  by  the  plaintiff  himself,  or  some  one  autho-^'ga^.,^'  ^gj 
rised  to  give  a  dischnge  for  the  money.     'Ihus  a  demand  by  a 
clerk  to  the  plaintiff's  attorney,  who  had  never  seen  the  debtor 
before,  will  not  be  sufficientAS)  EiP^Cam 

If  the  tender  were,  in  point  of  fact,  made  after  the  commence-  i78. 
ment  of  the  action,  but  before  the  exhibiting  (he  bill,  the  plain- 
tiff may  in  this,  as  in  the  former  instances,  shew  the  actual  com- 
mencement of  his  action,  by  stating  the  writ  in  his  replicatJon:MV'''^,^°^"'°° 
and  the  defendant  may  rejoin   that  there  was  then  no  cause  of  i  Lu.w.  227. 
action,  or  that  he  tendered  before  the  day  on  which  the  writ  was  u"'","  "'' 

....  r'ploe, 

sued  out.     On  the  first  rejoinder  it  will  be  incumbent  on  the  *?  East,  1 68. 

plaintiffto  prove  the  time  when  the  cause  of  action  accrued  ;  oni^^  Wood 

the  other,  the  defendant  must  shew  the  day  on  which  he  made  >f«  «'ion, 
,..,,;.,  "^  1  Wiis  141, 

his  tender.(5) 

I  shall  mention  two  defences  more,  which  may  be  either  spe-  Infancy- 
cially  pleaded  in  bar,  or  o;iven  in  evidence  on  the  general  issue, 
and  these  are  the  infancy  or  coverture  of  the  defendant  at  the 
time  of  the  contract ;  but  if  a  promise  be  made  at  the  time  a  wo- 
man is  sole,  and  she  marry  afterwards,  this  must  be  pleaded  in 
abatement.  (A;) 


Where  a  promissory  note,  tiot  negotiable,  was  made  payable  in'sixty  days  after 
date,  and  it  tell  due  on  Sunday,  it  was  held  that  a  tender  on  the  following  Monday 
was  good.  Avery  et  al,  v.  Utewui-t  et  at.  2  Do.  69. — ^Am.  Ed. 

I 
Infancy. 

(fr)  Infancy  may  be  given  in  eviilence  in  an  action  o(  assumpsit  under  the  general 
issui-.  Stansbury  v.  Marks,  4  Ddll  Rep  130. 

The  plea  of  iht-  infamy  of  on.  of  the  defendants  is  personal,  and  cannot  be  takea 
advaiitHge  of  by  the  otbei-  cb-defendant.  Van  Brainer  el  al  v.  Cooper  et  al  2  Juhns. 
Rep.  279.  S.  P.  Hurtness  et  al.  v.  Thomp.'.on  ft  al.  5  Johm.  Re}>.  160. 

The  infancy  ot  ti.e  plaintiff  is  not  a  ground  »i  non  suit  at  ihe  trial,  but  mu?t  be 
pleacl.-d  m  abatement  Schemerhorn  y.  Jenkins,  7  Johns.  Rep.  373  Ex  parte 
Scolt.  1  Cowe7i's  Rep.  33 

It  niusi  t.e  pleade.i,  and  cannot  be  given  in  evidence  on  non  est  fictum  Van  Val- 
kenburffh  v.  Rouk,  \l  Johns.  Rep  337. 

All  iriL.nt  may  br  na,  a  .  aeiioQ  on  a  contract,  but  he  must  sue  by  guardian.  M'  Gif' 
Jiny.  Sioi't,l  Coxe'sRep.Q2, 

3K 


434)  ASSUxMPSIT. 

Part  11.  To  the  plea  of  infancy,  the  plaintiff  may  reply,  first,  by  deny- 

n  anc}.      -^^  ^j^^  Infancy. 

"  Secondly.  That  the  defendant  ratified  the  promises  after  he 

came  of  age. 

Lastly.  That  the  things  furnished  were  necessary  for  his  de- 
gree. If  the  defpiulant  give  his  infancy  in  evidence  on  the  ge- 
neral issue,  the  plaintiff  may  prove  either  of  these  three  facts  in 
reply. 

In  the  two  first  cases  it  is  sufficient  for  the  plaintiff,  in  the 
Borthwickt'.  first  instance,  to  prove  a  promise;   and  it  is  incumbent  on  the 
iT'Ren'c48.^^^^°^^"^  *^  shevv  the  time  of  his  birth,  for  this  fact  cannot  be 
supposed  to  be  in  the  knowledge  of  the  plaintiff;  but  if,  upon  a 
replication  of  a  ratification  after  age,  the  defendant  establish 
his  nonage,  at  the  time  of  the  original  contract,  it  is  then  incum- 
bent on  the  plaintiff  to  prove  an  express  promise  to  pay  after 
he  attained  his  age.     A  bare  acknowledgment  of  the  debt  is  not 
(l)Larar'.      sufficient  in  this  case,(l)  as  in  the  case  of  the  Statute  of  Limi- 
^rteiH'T      tations,  for  the  law  protects  an  infant,  and  implies  no  promise 
31  Geo.  3,      further  than  for  those  things   which  are  necessary  for  his  sup- 
AI.  S. 

An  infant  may  commit  treason,  and  thus  subject  his  estate  to  forfeiture.  Sertn 
SX.  d.  Boyd  v.  Banta,  ibid.  266. 

A  sale  by  an  infant  accompanied  by  delivery,  is  good  against  third  persons, 
Johnson  v.  Packer,  1  j\'ott  &  Jll' Cord's  Hep.  1. 

An  infant  is  no  more  liahle  for  a  i'raud  in  a  contract  in  Chancery  than  at  law. 
Geer  v.  Hoovey,  1  Root's  Rep.  179.  Broien  v.  Dunhavi,ibid.  272. 

Ill  Chancery,  in  a  decree  against  infants,  time  wlil  be  giv-  n'thera  to  make  objec- 
tion after  attaining  their  age.  Braxton  v.  Lee''s  adinr.  iH.  £J  JMunf.  Rep.  376.  S, 
P.  Wilkirison's  adms.  v.  Oliver ,Sbid.  450. 

The  payee  of  a  note  given  by  an  infant  in  the  course  of  trade  cannot  enforce  it 
against  such  infant.  Van  IVinkle  v.  Ketcham,  3  Caines'  Rep.  323.  Coleman  ij 
Cables''  Cas.  in  Prac.  503. 

An  infant  will  not  even  be  held  to  bail  for  goods  sold  and  delivered,  not  being  ne- 
cessaries. Pratt  V.  Strickland,  I  Bro~Mie's  Rep.  213.  Sed  vide  Clemson  v.  Bmh, 
3  Binn.  Rep.  413. 

But  an  infant  is  bound  by  marriage  articles  or  settlements,  and  such  contracts  will 
bind  them  when  of  full  age.  Tabb  et  ul.  v.  Archer  dt  al.  3  H.  &  Munf.  Rep.  400. 

As  to  an  execution  issuing  against  a  minor  who  had  defended  in  an  action  ot  eject- 
ment by  his  guardian.  Vide  Lane's  les.  s.Gover,  I  H.  &  Jl'Hen.  Rep.  459. 

As  to  an  infant's  defending  a  suit  by  guardian.  Vide  Knapp  v.  Crosby,  I  Masc. 
Rep.  479.  Bro-wii  v.  Chase,  4  So.  436. 

An  infant  is  personally  liable  to  a  suit  for  neglectof  duty,  asa  member  of  a  militia 
company  ;  and  the  proteedings  for  the  recovery  of  the  penalty  incurred  are  not 
civiHter,  as  upon  a  contract,  but  criminuliter ,  for  an  offence  against  law.  JTinsloiv  v. 
Anderson,  4  Mass.  Rep.  3/6    Dyer  v.  Hunne^uell,  12  Do.  271. 

It  a  person  has  entered  into  a  contract  whde  an  infant,  his  executor  or  adminis- 
trator may  plea'l  his  infancy  in  bar  of  an  action  brought  upon  the  contract.  Smith  v_ 
Mayo  et  al  exr.  9  Do.  62.  Martin  v.  Savic,  10  Do.  137.  Jackson  v.  Same,  II  Do. 
147.  Husseyetal.y.  Jeviett,^  Da.  100.— Am.  Ed. 


INFANCY. 


435 


port.     In  this  case,  therefore,  the   payment  of  part  of  the  debt  Ch.  ii.  s.  3. 
after  age,  without  any  promise  to  pay  the  remainder,  will  not  bind     ^"'*'"*y- 
him  to  do  so  ;(1)  and  if  lie  promise  to  pay  a  part  of  the  debt,  — — — 
it  will  bind  him  so  far  and  no  farther.(/}t.2)  Fiddir^'jVLS. 

To  support  the  replication  of  necessaries,  the  plaintiff  must  prove  ^*l'-^-^>S-C. 
the  station  and  condition  in  life  of  the  defendant,  and  th^it  the  [^.p^'Jp*^"^' 
things  furnished  for  him  were  suitable  and, agreeable  to  that  sta- ^'''"S'lo" 
tion;  and  if  he  fail  in  establishing  this  fact,  the  jury  should  find  forcoi-.  FmsterJ. 
the  defendant  iCS-)  but  the  Judge  must  leave  the  question  to  them, -^^  ■'^- 
and  cannot  determine,  as  a  mere  question  of  law,  that  certain  I'il.inj'if^g^'p 
things  are  not  necessaries.(4)     Every  infant  is  chargeable  for^''''o'J-  Ox- 
necessary  victuals  and   clothing  for  himself,(5)   his  wife,(6)  orAss.  isie. 
lawful  child  ;(7)  and  one  bearing  a  captain's  commission  in  the  (4)  Mii(lo.vt>. 
army  has  been  held  liable  for  a  livery  provided  by  his  orders  for^  g''3^g'  ^^' 
his  servant,  for  this  is  equally  necessary  for  the  honour  and  ere-  (5)  Vide  Bui. 
dit  of  his  station. (8)     But  as  the  law  acknowledges  no  discre-  ^ '  ^"  '^*- 
tion  in  an  infant,  it  will  not  permit  him  to  be  charged  by  any  ^-1  g^   ^  ' 
contract  not  absolutely  necessary  for  his  existence  ;  and,  there-  N?i'ioii,.M.*s. 
fore,  for  cockades  found  for  the  soldiers,  by  order  of  the  defen-^'p  '    '^^^' 
dant  in  the  last  case,  he  was  holden  not  to  be  liable. (9)(wi)     So(8)  Hundst;. 
he  is  not  liable  for  goods  provided  him  to  sell  again,  though  he  ^  ^"^i,?  ^" 

=•        .     "^  .  .  ®  iu'p.  578. 

keeps  an  open  and  public  shop,  for  he  has  not  discretion  to  carry  (9)  [l,,,), 
on  business  ;(10)  and  even  money  lent  him  to  purchase  necessa-('O)  Greenr. 
ries,  unless  actually  so  applied  by  him,  is  not  recoverable  ;(I1)  ^YpulinVhani 
and  no  action  can  be  maintained  against  him  on  an  account  ^'^  iJiii  Cio.  j. 
stated,  though  the  particulars  of  such  account  were  for  necessa- ^,.  chammon 
ries:(12)  '^  Stra.  1088.' 

On  the  part  of  the  defendant,  on  this  issue,  it  may  be  shewn,  ^;i^rk,'„/ojjg 
that  he  was  provided  by  his  parents  or  friends  with  things  ne-^"^^  'le'^l 
cessary  for  his  condition;  and,  if  that  appear  to  be  the  case,  vMe  b.  &'p. 
whether  known  to  the  plaintiff  or  not,  it  is  the  bounden  duty  of'^*- 
a  jury,  though  oftentimes  unwillingly  performed  by  them,  to  find  ^54'    •  ^  •  P- 
a  verdict  for  the  defendant ;  for  the  law  in  favour  of  infants  was  (12)  Truman 
wisely  made  to  afford  them  protection  at  a  time  of  life  when  p  ,^".' j'»  ^ ^• 
they  have  not  wisdom  to  protect  themselves.!,  13)  Bartie,tw. 

EiiKi-y,  lb. 
:.  — .  42,  n. 

{I)  A  note  given  by  an  infant  becomes  good  by  a  promise  to  pay  it,  made  after  V.  ''|  ^  ,°'^[|  '"' 
drawer  of  the  note  came  of  age.  Laivvence  v.  Gardner,  1  Jioot's  Rep.  477.  S.  P.  p,  ^keh  Gas. 
Alsopv.  Todd,  2  Do.  105  2-29.   I  E-^p. ' 

So  in  the  case  of  a  bond,  thougli  an  infant  be  not  bound  by  it,  yet  he  will  bind  hiin-C;is.211.S.  C. 
,self  by  a  promise  to  pay  it  made  after  he  came  to  full  age.    Jieverleij's  trustees  v. 
Smith  et  al.  I  Wash.  Rep.  381.— Am.  En. 

(wj)  An  infant  alien  cannot  be  naturalised  on  his  own   petition.     Le  Forestiere's 
Case,  2  Mass.  Rep.  419.— Am.  Ed. 


436  ASSUMPSIT. 

Part  II.         The  defence  of  coverture  is,  in  general,  equally  unpopular  with 
Coverture,    ^j^^^  ^j-  ^-^jj^j^.^  .  ijytli,  if  must  be  confessctl,  are  attempts  to  avoid 
""                  paying  for  that  which  the  defendant  has  actually  received;  and 
in  both  cases,  must  the  plaintiff  sustain  a  loss,  if  he  does  not  re- 
ceive payment  for  the  commodity  with  which  he  has  parted, (n) 
The  sense   of  justice,   therefore,   natural   to  the   human    mind, 
raises  a  prejudice  against  these  pleas;  but  a  little  reilectlon  will 
convince  every  one,  that  the  \a.w  which  gives  them  is  wi«e,  and 
beneficial  to  the  public,  though  the  individual  maybe  sometimes 
injured  by  it.     As  ihe  infant  is  not  possessed  of  discretion  to 
know  what  is  beneficial  for  him  or  otherwise,  so  the  married  wo- 
man has  neither  property  nor   freedom  wherewith  to  contract; 
both  are  equally  under  the  dominion  of  her  husband,  and  there- 
fore the  law  prevents  her  from  being  accountable  for  her  con- 
tracts.    The  evidence  of  this  plea  of  course  lies  on  the  defen- 
dant.    She  must  p:  <.e  her  marriage,  which  is  generally  done  by 
an  examined  copy  of  the  register,  and  proof  of  her  identity,  or 
by  the  evidence  of  some  person  present  at  the  marriage  ;  she 
must  also  prove  that  her  husband  was  living  at  the  time  the  debt 
•was   contracted.     This   is   the   ordinary   evidence;  but  in  one 
( I )  Lear?°r r.  case,(l)   where  a  lady  was  married  in  France,  and  the  troubles 
1  Esp'353      i^  *^^^  country  rendered  it  almost  impossible  to  get  any  person 
S.  C. '       ' [ 

Coverture.  , 

'  {n)  Coverlure  of  plaintifT  cannot  be  pleaded  after  verdict,  or  after  report  of  reft:- 
rees.   Akxander  udmr.  v.  Fiuk,  12  Johns.  Rej>.  218. 

Coverture  may  lie  s^ivtii  in  evideiict  on  the  plea  ol  non  est  factum.  Van  Valken- 
bwgh  V.  Rouk,  12  .fohns.  Rep.  33'. 

Cf'Veriurt-  aiti-r  suit  brought,  is  a  plea  in  abatement  in  JRemisylvania.  Wilson  v 
Humilton,  4  Serg.  &  R.  Rep.  238. 

Any  agneemeiit  bft*ei  n  husband  and  wift  during  coverture,  is  void.  Dibble  y. 
Hutton,  1  Day's  Rep.  221. 

So  an  t-ndoisemt^n!  on  marriage  articles,  marie  after  marriage  by  husband  and 
■wife,  can  t)e  regarded  neitlur  as  a  part  of  the  original  cnniract,  nor  explanatory 
thereof.  Tabb  et  al.  v.  Archi^r  et  at.  3  ZT.  cif  Manf.  R'-p.  399. 

A  count  cl.a'gii.g  husband  and  wife  on  a  joint  assumption,  is  bad.  Grasser  s .  Eck- 
art,  1  Binn.  Rep.  575. 

Whether  the  sp.  cific  execution  of  an  agreement  of  husband  and  wife  concernine; 
her  land,  will  be  enforced  against  her  in  Chancery  .'  Downey  v.  Hotchkiss,  2  Day''s 
Sep.  225. 

A  bond  from  the  husband  of  a  feme  covert  for  her  separate  maintenance  after  a 
voluntary  separ-iiion,  is,  valid.  Page  v.  Colson,  2  JMass.  Rep.  159. 

For  any  species  of  injury  done  to  the  wife,  the  husband  may  release  the  damages. 
Sonth-wortli  v.  Packard,  7  Do.  95. 

The  coverture  (if  the  plaintifT  shoulrl  bf  pleaded  in  abatement,  and  cannot  be  taken 
advantage  of,  on  a  motion  for  a  nonsuit.  jYewtoii  v.  Robinson,  Tayl.Jiep.  72.  S.  F. 
Surfeit  V.  Jiraihford,  2  Bay's  Rep.  333.— Am.  Ed. 


COVERTURE.  ^gy 

As  a  witness,  who  was  present  at  the  marriage,  Lord  Kenyon  ch.  II.  s.  3. 
held,  that  proof  of  her  and  her  husband  having  been  received  as    Coverture, 
husband  and  wife  by  all  her  friends  and  relations  here,  was  suf-  ' 
ficient  to  support  this  plea,  without  calling  any  person  who  was 
present  at  the  marriage. (0)     To  this  plea,  the  plaintiff  may  also 
reply,  that  the  husband  at  the  time  of  the  contract  had  abjured 
the  realm,  or  was  transported  ;(1)  and  where  a  French  emigrant  (i)  it.  Rep. 
had  left  his  wife  in  this  country,   and  was  himself  resident  in  **'  ®* 
another.  Lord  Kenyon,  at  Nisi  Prius,  held,  that  this  circum- 
-'.stance  was  tantamount  to  the  state  of  banishment  in  a  native, 
and  that  the  wife  was  answerable  as  a  feme  soleXI)     So  if  thel^)  ^^•''^o'"^ 
wife  of  a  foreigner,  who  is  resident  abroad,  live  here  and  trade  pieime  M.  s. 
as  2).  feme  sole,  she  may  be  suedi3)  as  such.    And  in  all  cases(4)  -^  *^4'-  ^'^^^ 
where  the  husband  has  been  abroad  above  seven  years,  it  will  be 
incumbent  on  the  defendant  to  prove  that  he  was  alive  within  ^^■'.^'.'*^?'"°" 
that  time.     It  had  been  determined  by  some  modern  cases,(5)i  B.fccP  357, 
that  if  a  wife,  parted  from  her  husband,  with  a  separate  f^^in- ,4>  JJ,,,^.^„gll 
tenance,  secured  to  her  by  deed,  contracted  debts,  she  might  be^'  u   Puma, 
sued  on  such  contract :  but  in  a  late  case,  where  the  subject  was      ''"^'^  '    ^' 
fully  considered,  the  old  rule  of  law  was  re-established  ;  and  it(5)<^«  het  r, 
is  now  settled,  that  no  agreement  between  a  man  and  his  wife  uep'  's,  'i«c. 
can  so  far  remove  the  legal  disabilities  of  the  latter,  as  to  make 
her  contract  binding  ;(d;  and  so  absolutely  void  is  this  contract,  1;.  Kiiu.m.,  8 
that  no  promise  made,  after  the  death  of  the  husband,  can  give  *•  *^  !'•  ^^^ 
validity  to  it,(7)  so  as  to  maintain  an  action  on  the  original  pro- (")  Lloyd  r. 
mise  ;  though,  if  such  original  promise   were  founded  on  such,J^'^'^    ^'^ 
a  consideration  as  imposed  a  moral  obligation  on  her  to  perform 
it,  it  will  be  sufficient  to  support  a  count  on  the  new  promise 
made  after  the  death  of  the  husband.(8)  (^^  ^''^^ 

5  Taunt.  36. 

(0)  'I  he  wife  of  one  who  has  been  .-ihsent  in  the  East  Indies,  six  op  seven  years, 
having,  during  nis  absence',  car  ied  on  business  as  a  feme  sole,  still  is  not  in  the  esti- 
itiation  of  law,  &feme  sole    The  Commonwealth  v.  Collins,  1  Muss.  Rep.  116. 

In  Pennsylvania,  there  is  a  I  gislative  provision,  enabling  a  feme  covert  to  act  and 
trade  ;i3  » feme  sole.   1  Sm   L.99 

Wiiftt  evidence  of  nvirriage  is  sufficient  to  entitle  the  party  to  alimony,  Vide 
Pnrcell  v.  Purcell,  i  ff.  &  Munf.  Rep.  507. 

On  a  petition  for  dower,  co-habitation  and  havin_^  children,  will  furnish  presump- 
tive evidence  of  marriage.  Whitehead  v.  Church,  2  Hayiv.  Rep.  y.  Vide  ante,  p, 
131.  note  (x)— Am.Ed. 


(  438  ) 


CHAP.  III. 


or  THE  EVIDENCE  IN  ACTIONS   OF   COVENANT. 

I'aitll.  The  form  of  pleading  in  covenant,  not  allowing  that  latitude 

factum!     *^  ^  defendant  which  he  is  entitled  to  in  the  action  of  assumpsit 

, the  evidence  which   the  plain'ift'is  called  upon  to  give  is  more 

easily  ascertained  than  in  that  form  of  action;  for  as  the  law  has 
given  no  general  issue  in  this  action,  which,  when  several  facts 
are  stated,  denies  the  whole  of  the  plaintitf's  case  ;(a)  and  as  we 
have  before  seen  that  facts  which  are  not  expressly  denied  are 
considered  as  admitted;  it  follows  that,  unless  in  the  case  of 
several  pleas  under  the  Statute  of  Anne,  the  evidence  of  the 
plaintiff  is  generally  confined  to  a  single  fact. 

The  most  common  plea  in  the  action  of  covenant  is  that  of 
non  est  factum,  whereby  the  defendant  denies  that  the  instru- 
ment, on  which  the  action  is  founded,  is  his  deed.(6)     On  this 


(a)  Covenant  can  be  brouglit  only  on  a  sealed  instrument.  LnJ!um  v.  Wood, 
1  Penning.  Rep.  55  Vide  Ja!iper''s  adms.  v.. Toolet/'s  admrs.  2  Hayio.  Jiep,  3S9. 
Ibid.  351. —Ail.  Ed. 

{b)  In  iMcissachnsetts,  in  an  action  of  covenant,  under  the  plea  of  non  est  factum. 
special  matter  will  not  be  allowed  to  be  given  in  evidence.  Kellogg  v.  Inge]-soll,l 
Mass.  Rep.  5. 

In  Connecticut ,  (under  a  Statute)  the  defendant  may  give  in  evidence  under  the 
general  plea,  any  thing  which  goes  in  avoidance  of  the  bond.  C!ark  v.  Bray,  Kirb. 
Rep.  237. 

Under  this  plea,  the  defendant  could  not  give  in  evidence  that  a  deed  was  deli- 
vered as  an  escrow,  but  it  must  be  specially  pleaded.  SmallTvoodv.  Clarke,  Tayl, 
Rep   281. 

Plea  of  acceptance  in  satisfaction  from  a  third  person  or  stranger,  is  not  a  good 
plea  in  covenant.      Clow  v.  Borst  et  a!.  6  Johnt.  Rep.  37. 

In  an  action  of  covenant  on  a  policy  7/nf/ej'  seal,  all  special  matter  of  defence  must 
he  pleaded.     JMarine  Ins.  Co.  v.  Hodgson,  6  Cranch's  Rep.  206. 

The  plea  of  performance  ivilli  leave,  cjc.  in  an  action  of  covenant,  is  peculiar  to 
Pennsylvania,  and  has  been  sanctioned  by  too  long  a  usage  to  shake  it.  Under  this 
pli-a,  upon  notice  to  the  plaintiff  without  fovm,  the  defendant  may  give  any  thing  in 
evidence  which  he  mis;ht  have  pleaded.     Bender  v.  Fromlieiger,  4  Dall.  Rep.  436. 

The  plea  of  covenants  peiformnd,  admits  the  execution  of  the  instrument  and  su- 
persedes the  necessity  of  other  proof,  bul  it  does  not  admit,  that  the  adverse  party 
had  performed  his  agreement.  JVeave  v.  Jenkins,  2  Yeates^  Rep.  107.  Et  vide 
Barnett  v.  Cnitcher,  3  Bibb.  Rep.  202. 

On  an  issue  of  quuntum  damnificatus,  ordered  by  a  Court  of  Equity,  for  breach 
of  the  covenants  in  a  deed,  the  Court  will  allow  the  defendant  in  that  issue  to  give 


COVENANT. 


439 

plea,  therefore,  the  plaintiff  will  be  called  upon  to  prove  that  chap,  ni, 
the  instrument  was  fairly  executed,  without  fraud,  and  that  the  N"'"  fst 
proper  legal  formalities  were  complied  with  ;  the  mode  of  prov- 


ing, which  I  have  before  had  occasion  to  notice.  j^„t^,  ^42  . 

The  defendant,  of  course,  will  be  entitled,  in  his  turn,  to  give 

any  evidence  which  shews  that  it  was  not  duly  executed  by  him. 

If  it  be  a  forgery  ;  or  if  he  were  a  lunatic  ;(1)  or  intoxicated,  and  y„„„ 'o^c^'a 

knew  not  what  he  did  ;(2)  or,  if  being  blind,  or  illiterate  the  in-uo4. 

strument  was  falsely  read  to  him,  it  is  not  considered   as  his  .2\  coiet^. 

deed,(c)  and,  therefore,  either"  of  these  facts  may  be  given  in  evl-  R'^bins, 

■  .  f.B  N.  p.  172, 

dence  on  the  part  of  the  defendant.     But  the  circumstance  of   '     '    ' 

the  deed   being  founded  on  an  usurious  or  other  corrupt  consi-(3)»!;"'  (^) 
deration  ;(3)  or  that  the  party  was  an  infant,  or  under  duress  at  172. 
the  time  ;(4)  does  not  so  wholly  destroy  the  deed,  as  to  be  evi- 
dence on  this  issue. (rf)     In  the  case  of  a  married  woman,  how- 

in  evidence,  in  diminution  of  the  damages,  the  value  of  the  land  which  passed  to  the 
vendee,  by  the  deed,  over  and  above  the  quantity  expressed  in  the  deed.  Thomas 
V.  Perry,  I  Peter'' s  Rep.  49. 

On  the  issue  o\'  covenants  pei-formed,  evidence  to  shew  that  the  plaintiff  accepted 
the  work  ["erformed,  differently  from  that  stipulated  for,  is  not  admissible.  Watlian 
V.  Penebaker,  3  Bibb.  Rep.  99.— Am.  Ed. 

^  If  thf  plaintiff  made  profert,  he  must  produce  the  deed,  and  cannot,  on  such  a 
declaration,  give  evidence  of  its  destruction,  except  in  the  case  of  an  enrolment  un- 
der the  Statute  of  Ben.  8,  in  which  case  the  Stat.  13  Jinn.  c.  18,  under  certain  cir- 
cumstances makes  a  copy  of  the  enrolment  evidence.  Vide  ante,  165.  In  all  other 
cases  of  loss,  destruction  or  possession  of  the  defendant,  the  plaintiff  must  state  the 
circumstance  specially  in  the  declaration.  Smith  and  another  v.  Woodford,  i  Easfs 
Rep.  585. 

(c)But  it  seems  that  the  intoxication  mast  have  arisen  by  the  procurement  of  the 
plaintiff.     Curtis  v.  Hall,  I  South's  Rep.  361. 

Or  that  a  different  instrument  was  signed  instead,  of  the'one  the  defendant  sup- 
posed he  was  executing.  Van  Valkenburg  v.  Konk,  12  Johns.  Rep.  387,  Et  vide 
Moore  v.  Carpenter,  Cameron  &  JVorw.  Rep.  553. — Am.  Ed. 

(t/)  A  specialty  will  be  vacated  in  Chancery,  in  favour  of  the  representatives  of  a 
party,  on  the  ground  that  he  was  drunk  when  the  party  executed  it,  though  such 
drunkenness  were  not  occasioned  by  the  procurement  of  the  party.  Wiffglesioorth 
V.  Steers  et  al.  I  B.  &  Munf.  Rep.  69. 

So  in  an  action  brought  on  a  bond,  executed  by  the  obligor,  when  drunk,  for  a 
debt  he  did  hot  owe  ;  judgment  will  be  given  for  the  defendant.  King's  exrs.  v. 
Bi-yanfs  exrs.  2  Huyto.  Rep.  394. 

The  obligor  must  perform  the  condition  of  a  bond,  if  lawful,  or  incur  the  penalty. 
Boldndge  v.  Allin,  2  Root's  Rep.  139.  Vide  ante,  p.  402.  note  (s) 

Failure  of  consideration,  furnishes  a  good  ground  of  defence,  against  a  bond  given 
for  the  consideration  money  of  a  tract  of  land.  Thompson  v.  M-  Cord,  2  Bat/'s  Rep. 
70.  .S".  P  .State  Y.  Galliard  et  al.ibid.  11.  Grarj  v.  Handhinson,  1  Baifs  Rep.  278. 
Though  an  inff.r.t  at  the  time  of  executing  a  bond,  fraudulently  allege  hims<  If  to 
be  of  full  age  ;  yet  the  bond  will  be  held  to  be  void  at  law.  Conroe  v.  Birdsall, 
1  Johns.  Cas.  127. 


^|,0  COVENANl. 

Part  II.     ever,  her  deed  been  absolutely  void,  her  coverture  may  be  taken 

Non  est 


fi)ctum. 


WherK  an  inlant  baigains  and  sells  laud  to  .1.  and  afti-i-  coming  of  agf,  st^lls  the 
sam<  land  to  B.  this  is  a  revocation  of  the  Ibrmer  grant,  admitting  that  ih^-  first 
deed  nas  voidable  only,  and  not  void.  Jackson  ex  d.  Brayton  et  al.y.Bnrchin,  14 
Johns.  Rep.  124. 

A  deed  executed  b}'  a  minor  is  not  binding.  Thompson  v.  Bullock,  1  Bay's 
Rep.  364. 

Yet  a  minor  will  be  boun'l  by  a  jointure  given  iier  in  bar  of  dower  by  marriage  ar- 
ticles, though  she  was  under  age.   \  H.  &  MHeii.  Rep.  5S8. 

S.  P.  in  Virginia.  Tabb  et  al.  v.  Jirclier  et  al.  3  H.  &  Munf.  Rep.  399. 

A  tieed  made  during  minority,  will  be  made-  good  by  the  part)  confirming  it  by 
parol  declarations,  alter  he  arrives  at  age.   Houser  v.  Reynolds,  1  Hayw.  Rep.  143. 

But  it  must  be  made  deliberately,  and  with  the  knowledge  that  he  is  not  liable  by 
law.  Smith  ?.  Mayo  et  al.  exrs.  9  Mass.  Rep.  62.  Iliusey  et  al.  v.  Jewett  exr. 
ibid.  100. 

Vide  Buckneret  al  v.  Smith,  1  Wash.  Rep.  381.  Vide  ante,  p.  433.  note  (fc) 

"Where  the  plnmiiff  and  defendant  having  hada  quarrel,  the  plaintiff  went  to  the-: 
defendant's  house  afterw»rds,  in  the  night,  wiih  an  armed  party,  and  proposing  a 
settlement  of  the  ilifFerence,  (though  no  actual  threats  were  made  use  of)  and  a 
note  given  with  security,  in  consetiuence  ot  this  proposal,  it  was  held,  the  note  was 
given  under  duress,  and  w:is  void,  both  as  to  the  principal  and  secuniv.  Evans  v. 
Hueij  et  al.  I  Bay's  Rep,  13. 

In  an  action  on  a  bond,  evidence  cannot  be  given  to  prove  that  the  son  of  one  of 
the  obligors  was  in  duress,  and  that  another  ot  them  executed  the  bond  to  procure 
his  release.  Simms  v.  Barefoot'' s  exrs.  i  Hayw:  Rep.  40'2. 

DuT'-ss  of  goods,  under  some  circanistances,  will  avoid  a  man's  note  or  bond. 
Sasportas  v.  Jennings  et  al,  1  Bay's  Rep  470.  The  Inhabitants  of  fVorcester  v.. 
Eaton,  11  Mass.  Rep.  379 

Duress  ot  goods  or  negroes,  is  a  goo<l  plea  to  a  bond  given  for  their  release,  under 
hard  and  pressing  ciicmnstanct-s,  which  are  to  be  considered  by  the  jury.  Collins 
V.  IVestbiiry  et  ill.  2  Bay's  Rep.  '21 1 . 

One  obligor  cannot  plead  that  the  bond  was  obtained  of  his  co-obligor  by  du» 
ress,  except  in  case  of  a  bond  taken  by  a  Sht  riff,  from  one  wlmm  he  has  no  right  td 
detain  in  custudy.     Thompson  v.  Lockiooud,  15  .Johns.  Rep.  256. 

It  is  a  general  rule,  that  imprisuument  by  order  ot  law  is  not  duress.  FfatkinsY. 
Baird,  6  Mass.  Rep.  506. 

Will  a  Cuuri  of  Kquiiy  enforce  a  voluntary  covenant  to  convey  land  ?  Broioney. 
Browne  et  al.  1  Har  ij  Johns   Rep.  430. 

In  Kentucky,  it  has  been  ruled  that  ineiiuces,  which  induce  a  fear  of  loss  of  life, 
of  member,  of  mayhem,  or  of  imprisonment,  nia>  avoid  a  deed  ;  but  mi-naces,  to 
commit  a  battery  ,  to  burn  a  house,  or  spoil  goods,  will  not  be  sufficient.  Edwards 
V.  Uandky,  Hardin's  Rep.  602. 

Duress  and  imprisonment  will  avoid  a  receipt.  Candy  v.  Tivichell,  2  Root's  Rep. 
123. 

A  covenant  to  keep  the  premises  io  good  order,  will  be  vacated  by  the  premises 
being  burnt  by  the  common  enemies  of  the  country.  Pollard  v.  Shuaffer,  I  Dull, 
Rep.  210. 

But  not  4f  accidentally  destroyed  by  fire.  Con?is  v.  Fisher,  3  Bibb's  Rep.  51. 
Hallett  V.  fVylie,  3  Johns.  R<-p.  44. 

Where*  a  lessee  covenants  to  keep  the  demised  premises  in  repair,  and  at  the  de- 
termination of  the  lease,  to  surrender  tlieni  in  :ts  g.ioit  a  condition  as  they  were  at 
the  dale  of  the  lease  ;  il  the  hu.idingsare  di  siroyed  tjv  fii  e  during  tlie  term,  without 
the  default  of  the  tenant,  he  will  be  bound  to  re«build  them.  Philips  v.  Steven*, 
lit  Mass.  Rep.  238.— Am.  Ed, 


COVENANT.  411 

advantage  of  on  non  est  facfum.(l)(e)     In  like  manner  as  any  ciiap.iii. 

improper  conduct,  at  the  time  of  the  execution  of  the  instru-  f^l.'",,^^* 
ment,  may  be  given  in  evidence  on  this  plea,  so  may  any  altera- 


tion whatever  made  by  the  plaintiff*,  or  by  another  person,  in  a^i)ibid. 
material  part  of  the  deed  since  ;  for  these  a^oid  the  deed,  and 
shew  that  it  does  not  remain  so  at  the  time  of  plea  plead- 
ed.^2)^/*)     So  if  the  seal  be  broken  oft',  with  a  view  of  cancelling C-J)  Piggot's 

.  .  .  CJ  ise   11  Co 

the  deed,  the  defendant  may  avail  himself  of  it  on  this  plea ;  j;^7/ 

(y)  A  bond  given  by  :<  feme  covert,  is  absolutely  void,  eve  n  though  she  be  a  ferae 
sole  tiader-.  unIi-ss  she  be  spiciall)  siHted  to  be  on?,  in  th^  pleadings,  when  she  can 
bind  h<'i-self,  bv  a  legislature  provision  of  the  Slate.  Wallace  v.  Rippon,  2  Jiay'^s 
Sep.  112— Am  Ed. 

(e)  \(  a  bond  be  executed  jointly  and  severally  by  three,  and  an  alteration  be 
made  in  ii  by  the  consent  of  two  of  the  obligors  in  the  absence  of  the  third,  and  af- 
terwards the  seal  and  signature  of  the  third  be  erased  by  the  oblig  e  without  the 
consent  of  the  others,  the  bond  becomes  voi  1.  Hfwey  v  Bradbury,  1  Tyl  Rep.  186. 

An  interlineation,  if  made  after  the  ex;  cutioti  '•it  a  deed,  will  avoid  it,  though  in 
an  immaterial  part.   Morris's  Iss.  v.  Vanderen,  I  Dall.  Re[t.  07. 

A  material  cmsure  or  interlineation,  not  shewn  to  have  been  made  before  its 
execution,  is  sufficient  to  avoid  it,  on  the  plea  of  non  est  factum,  and  the  presump- 
tion is,  (hat  it  was  made  afterwards.  PreTost  v.  Grutz,  1  Peters^  Rep.  369.  Smith 
V.  Crooker  et  ul  5  Mass.  Rep.  53S.  Hunt  u dm  \.  Adams,  d  Do.  5X9.  Hatch  etux. 
etal.  v.  Hatchet  ul.  2  Do.  307. 

There  is  a  diff  rence  between  contracts,  or  bonds,  and  deeds  of  conveyance  of 
land,  as  to  the  efftct  of  alterations  made  in  them.  Barrett  v.  Thorndike,  1  Greent. 
Rep.  72. 

(lucre.  Do  material  alterations  in  a  deed  by  a  stranger,  render  it  void.  Jackson 
ex.  d.  Malin  v.  Malin,  15  Johns.  Rep.  -197 . 

It  a  spiciaity  be  lost,  it  must  be  declared  on  as  such,  and  the  loss  alleged  in  the 
declarati'n  when  oyer  will  not  he  graiiietl.  Kelley  ■<: .  Rig^s.  2  Root's  Rep  1-26. 
S.  P.  Church  v.  Flo-wers,  ibid  144.  Paddock  v.  Hijgins,  ibid.  482. 

When  the  breach  of  a  covenant  is  specially  assigned  and  the  proof  of  it  alleged 
to  he  by  <leeds  and  records,  they  must  be  sliewn  on  oyer.  Wilford  v.  Rose,  2  Roofs 
Rep.  172. 

It  is  no  excuse  on  a  motion  for  oyer  that  the  writing  is  lost,  but  the  loss  should 
be  set  out  in  the  declaration  or  plea.  Brunch  v.  Riley,  1  Root's  Rep.  .^41. 

But  it  has  been  ruled  in  Fir^J/w'a,  that  the  copy  of  a  deed,  of  which  oyer  cannot 
be  demanded,  may  be  given  in  evidence,  if  the  original  be  lost ;  Imt  if  oyer  be  de- 
manded, the  obligee  must  resort  to  equity  for  relief.  Taylors.  Peyton,  1  Wash. 
Rep.  324. 

Wlieie  the  deed  is  not  merely  the  inducement,  but  the  foundation  of  the  action, 
or  where  the  right  of  action  is  not  creattd  bj  operation  of  law  but  by  the  act  of  the 
party,  the  (ilaini  iff  must  make  in  his  d(  daration  a  profert  of  the  obligation  or  other 
instrument  emh.acinn  the  coniraet.  Austin  v.  />///*,  1  Fyl.  ReJ).  308. 

Though  profert  of  a  de>-d  be  made  if  oyer  bi-  not  pra><d,  the  deed  will  not  be 
considered  nn  recori).  Bender  v.  Frumbergpr,^  Dall.  Rep.  i36. 

In  an  action  ofdc  bt,  profert  was  not  m;i«le_of  the  deed,  on  which  it  was  founded, 
and  it  Was  held  fatal  after  judgment  b>  default.   Scott  v.  Curd,  Hardin's  Rep.  64. 

Whether  if  there  b-  no  profert  of    the  deed,  and    the  defendant  i<k  s   oye.-,  (he 
defenilai  t  can  lake  Mcivantage  of  a  variance  by  demurrer.  Macon  t.  Crump,  I  Cull'a 
Rep.  575.  Vile  King  v.  Bryant,  2  Haijiv.  Rep.  594.— Am.  Ed. 
3  L 


4^4:^  COVENANT. 

raitli.      but  it   the  seal  were  broken  by  accident,  and  the  plaintift' prove 
JS'on  est     this  tact,  it  still  continues  an  existing  instrument  ;(1)  and,  if 

laitum.  °  111 

the  aleration  has  been  made  after  the  plea  was  pleaded,  this  does 


(1)  Vide  Bui.  not  support  the  plea.(2) 

N,  P.  17-2.  If  the  declaration  contain  different  averments,  and  tlie  defen- 

(2)  Michael     dant  onl_y    plead  7ion  est  factum,  the  other  facts  cannot  be  con- 
V.  Stoi-kwirh,  troverted ;  nor  will    the  plaintiff  be  under   any    necessity  of 

proving  them,  further  than  may  be  sufficient  to  ascertain  his 
damages. 

When  the  defendant  does  not  plead  non  est  factum,  but  tra- 
verses some  other  fact  mentioned  in  the  declaration,  the  evi- 
dence will  be  confined  to  the  fact  so  traversed,  and  the  onus 
will  lie  on  that  party  who  makes  the  affirmative.  Thus,  if  a 
landlord  sue  his  tenant,  and  aver  that  he  ploughed  up  meadow 
land,  &c.  contrary  to  his  covenant,  and  the  tenant  traverse  this 
fact,  the  plaintiff  must  begin  with  evidence  to  prove  it;  but  it 
the  defendant,  in  an  action  on  a  covenant  to  pay  a  sum  of  mo- 
ney, plead  that  he  paid  it  according  to  the  covenant,  the  plain- 
tiff is  not  obliged  to  give  any  evidence,  but  the  defendant  must 
prove  his  plea  of  payment. (^) 

Assignment  of  Breaclies, 

{g)  In  covenant,  tlie  general  rule  ol'  assigning  a  breach  is  to  negative  the  words 
of  the  original  covenant  if  it  be  sufiicient,  if  not,  to  assign  it  specially,    ^larston  v. 
Uobbs,  2  Sllass.  Jiip.  433.  S.  P.  TiecuhueU  v.  Steele,  3  Caines''  Rep.  169.  Hughes 
V.  Miller,  a  Johns.  Hep.  16S.  Bender  v.  Fromberger,  4  Dull.  Rep.  436.     Craghill 
^  et  al.  V.  Page,  2  E.  &  J\lunf.  Rep   446.     U'insloiv  v.  T/ie   Conunoiuuealth,  ibid. 

459.   Dougherty  v.  Glen,  Hardin's  Rep.  ii91. 

An  assiq-nment  of  breaches,  to  be  sufficient,  must  be  in  the  words  of  the  covenant 
or  in  woriis  of  equal  import.  King  v.  Rochester, o  JMarsh.  Rp.  228.  Hord\.  Trim- 
ble, ibid.  534. 

When  a  parly  declares  in  substance  on  a  written  contract,  he  is  not  obliged  to  set 
forth  the  express  svords  of  the  coulraet  in  his  declaration.  JiJ.orton  v.  fVells,  1  Tyl. 
Rep.  3Sl. 

In  an  action  on  a  probate  bond,  the  breach  must  be  positively  and  directly  assigned. 
Fitch  V.  Lothv'jp,  1  Root's  Rep.  8S. 

Covenants  are  to  be  construed  according  to  their  spirit  and  intent,  and  a  breach 
so  assigfifcd  will  be  held  good.  Quackenboss  v.  Lansijig,  6  Johns,  Rep.  49.  S.  P _ 
Buster's  exr.  v.  Jl'iUlace,  4  H.  &  Jlfimf.  Rep.  82. 

A  covenant  to  convey  the  title,  means  the  legal  estate  in  fee,  free  from  all  valid 
claims,  liens,  or  encumbrances  whatever.  Jones  \.^ Gardner,  10  Johns.  Rep.  266. 
Et  vide  Clute  v.  Robison,  2  Do.  595. 

If  a  covenant  be  alleged  in  the  7iarr.  to  have  been  made  by  the  defendant,  his 
heirs,. executors,  and  administrators,  i)Ut  the  covenant  does  not  mention  heirs,  the 
variance  is  not  material.  Jordan  v.  Cooper  el  al.  3  Serg.  ^  R.  Rep.  564. 

It  is  sufficient  in  an  action  of  covenant,  if  the  plaiutifTstt  foi-ih  as  much  of  the  writ- 
ing declared  on  as  will  shew  his  title.  JYIacon  v.  Crump;  I  Call's  Rep.  587. 

In  an  action  on  a  covenant  by  several  persons,  it  m-iy  be  taken  distinctively,  though 
there  be  no  e.xpr^ss  words  of  severalty.  Ernst  v.  Bartle  et  al,  1  Johns.  Cas.  319. 


COVENANT.  4,^3 

The  action  of  covenant  is  frequently  brought  by  or  against    chap.  iii. 
an  assignee  of  a  reversion  or  term,  and  if  the  plaintiff  have  the^'^J'  "I  "ga">st 

25  ^  ...  -      assignee. 

whole  estate,  though  only  in  part  of  the  premises  in  respect  of 

which   the  covenant  was  made,  he  may  maintain   the  action.(l)M>  (jj,„,j,^gH 

f.  Lewis, 3  B. 

&  A.  39'2. 

If  a  breacli  be  badly  assigned,  it  will  be  aided  after  verdict  for  the  plaintiff",  on  an 
issue  joined  on  the  plea  that  the  defendant  had  not  broken  his  covenant.  J}nster''s 
exrs.  V.  Wallace,  4  //.  &  Munf.  Hep.  82. 

An  assignment  of  a  breach,  conimencitig  with  "  xvhereas"  &c.  and  continuing 
by  way  of  recital,  without  any  direct  avernaent,  will  be  fatal.  Syme  v.  Griffin,  ibid. 
277. 

In  an  action  of  covenant  it  was  .held  that  a  plea  of  acceptance  of  satisfaction  by 
the  plaintiff  from  a  third  person  or  stranger  would  be  bad.  Clorj  v.  Borst  et  al.  6 
Johns.  Rep.  37. 

In  afi  action  of  covenant,  whei'e  some  of  the  breaches  are  well  assigned  and  some 
not,  and  the  defendant  demurs  to  the  wliole  declaration,  the  plaintiflf  will  have 
judgment  for  the  whole  breaches  that  are  well'assigned.-  Adams  v.  IVilloughbii , 
ibid.  65.     Vide  Henderson  ».  Hepburn,  2  CalVs  Rep.  232. 

jyiutzial  Covenants. 

In  a  deed  containing  express  covenants,  there  can  be  no  implied  covenants,  or 
covenants  in  law,  which  are  contrad,ictory  to  the  express  covenants;  but  thei-e  may 
be  implied  covemnts,  which  are  consistent  with  those  expressed  in  the  deed.  Gates 
V.  Caldwell  et  al.  exrs.  7  JMass.  Rep.  68.  Sumner  admr.  v.  Williams  et  al.  8  Do. 
201. 

When  there  are  mutual  covenants  to  perform  certain  tilings  at  one  and  the  same 
time,  and  the  one  is  the  co;isideration  of  the  other,  they  :iie  concurrent  acts,  and 
neither  party  can  have  an  action  without  having  performed  or  tendered  a  perform- 
ance f  his  part.  Levereit  v.  Bellamy,  I  Root''s  Rep  IG9  .^.  P.  Cassellw  Cooke, 
8  Serg.  &  R    Rep.  268.     Poltard  v.  M  Clain,  3  Mursh.  Rep.  25. 

In  mutual  covenants,  the  payment  or  performance  by  07ie  parly  i-aises  an  obliga- 
tion on  the  ot/ier  party  to  perform,  without  a  demand,  bis  covenant.  Shackelford 
V.  Rarroiv.  2  Bay's  Rep.  91 

Where  bj  the  tt-rms  of  a  contract,  one  party  is  to  execute  a  deed  to  tht  other, 
precedent  to  a  duij  to  be  performed  by  the  latter,  it  is  sufficient  in  ah  action  by  the 
former  for  the  non-performance  of  that  duly  to  state  that  he  iirs  made  out  and  lea- 
dered  such  a  deed  as  the  contract  coatemplattd,  without  reciting  the  deed  in  his 
verbis.     J\'ichols  v.  Blakeslee,  2  Day''s  Rep.'ilH. 

The  non-performance  by  the  plaintiff. <(  a  iirecedent  duty  may  be  relied  upon  as  a 
defence  to  an  action  for  not  complying  with  a  covenant  entered  into  by  the  defend- 
ant.    Bulkley  v.  Brainard,  2  Root's  Rep.  5. 

An  averment  of  "  being  ready,  prepared  and  offering  to  execute  a  conveyance 
"  according,  &c.  but  that  the  defendant  did  not  attend,  and  has  refused,''  is  a  suf- 
ficient offer  t-  perforni  h\  the  plaintiff.  Milier  v.  Drake,  1  Caines'  Rep.  45.  El- 
ting  et  al.  v.  Vanderlyn,  4  Johns.  Rep.  237 

Independent  Covenants. 

Vide  Barruso  v.  Madan,  2  Johns.  Rep.  145.  Seei-s  v.  Foiuler,  ibid.  272.  Havens 
V.  Bush,  ibid.  387.  Wilcox  v.  Ten  Eyck,  5  Do.  78.  Cunningham  et  al.  v.  Mon-ell, 
10  Do.  203. 

Dependant  Covenants. 

Vide  Green  v.  Reynolds,  2  .Johns.  Rep.  207.  M'  Call  v.  Welsh,  3  Bibb.  Rep. 
289.    Jones  v.  Gardner,  10  Johns.  Rep.  266, 


444  COVENANT. 

Part  II.  In  cases  where  the  assignee  is  p!aintiif,  it  is  necessary  for 

'^^asTi^nee'"** '^"^  to  set  out  the  title  of  the  original  lessor,  so  as  to  shew  a  re- 

'  version  in  himself;  and  though  where  the  original  lessor  is  him- 

Where  thire  are  mutual  parol  promises,  oni-  bringthe  consiileration  of  the  other; 
each  gives  a  right  ol  iiciion,  ariil  the  plaintiff  need  riot  aver  a  performance  ou  his 
part.     Hancock  \.  Vawter,  Hard.  Rfp  510. 

Covenant  of  seizin,  quiet  possession,  &c. 

No  action  will  lie  on  covenant  oi general  -warranty  of  title  (ill  an  eviction.  Emer- 
son V.  The  Propnetors  of  land  in  JHinot,  1  Mass.  Rep.  404. 

The  covenalil  of  wairai.t}  in  a  deed  cannot  be  broken,  ()Ut  b?  an  eviction  or  ous- 
ter by  some  title  pHrarronnl  to  the  grantors.  Tianmbly  \.  Henley,  i  J\liiss.  Rep. 
441.  JMorston  v.  Hobbs,  2  Bo.  433.  Benrce  v.  Jackson  admr.  4  Do.  408.  Prescott 
V.  Truenum,  ibid  627. 

Eviction  is  somt-tinies  construed  by  Courts  as  synonymous  wKh  ouster.  Hamilton 
V.  Cutli  et  al  exrs.  4  J^tass.  Rep.  349. 

One  in  tlie  possession  ol  lan<l,  claiming  to  hold  it  in  fee  simple,  is  sufficiently  seiz- 
ed to  enable  him  to  convey  ;  and  if  hr  warrant  the  land,  no  action  will  lie  against 
him  on  his  covmant  of  warranty  until  an  eviction  of  the  grantee  or  his  assigns  by  a 
paramount  title.  Scarce  v.  Jackson,  4  Mass.  Rep.  408.  Et  vide  Marston  v.  Hobbs, 

2  7)0.433. 

In  an  action  on  a  covenant  of  seizin,  the  plaintiff  must  not  only  shew  the  defend- 
ant was  not  stizrd,  but  who  was  seized       IVelford  v.  Rose,  2  Root's  Rep.  14. 

A  declaration  on  a  covenant  o(  seizin  v/ill  be  supported,  though  it  should  set  forth 
a  covi  iiaiil  of  ivarrunty  of  title.     Seymour  v.  Ensign,  I  Root's  Rep.  210. 

In  JV'evf  Yoi k  it  has  been  decided,  iliat  an  action  on  a  covenant  of  -warranty  for 
peaceable  poasrssion  cann()t  bi  maintained,  until  there  has  heen  an  eviction  or  actual 
ousti-r  by  a  paramount  lawful  liile.   Waldron  v.  MCarty,  3  Johns.  Rep.  464. 

So  in  a  later  case,  'a  covenant  for  quiet  enjoyment  was  held  to  extend  only  to  the 
possesion  'Mif]  not  to  the  title,  and  th-rrtore  is  not  broken  unless  there  be  an  evic- 
tion of  thi  covi  nantee,  or  an  actual  disturbance  of  his  possession.  Koftz  v.  Catpcn- 
ter,  5  Johns  Rep.  120. 

In  JVeiv  Jrrsey  it  has  been  ruled,  that  to  maintain  an  action  on  a  covenant  o{ seizin, 
it  is  not  n<  cessary  to  prove  an  eviction,  nor  an  offer  to  restore  the  possession.  Lot  v. 
Thomas,  I'enning.  Rep.  407. 

In  the  Supreme  Couit  of  the  United  States  it  has  been  ruled,  that  in  an  action 
brought  on  a  covenant  of  seisin,  it  is  not  necessary  to  maintain  the  action  that  the 
^\w'\\?i  should  have  been  (victed.  Pollardetal.v.  Dwightet  al.  ^Crunch's  Rep.  421. 

Ill  declaring  for  the  breach  of  a  covenant  qidet  enjoyment,  it  must  be  alleged  that 
the  plaintiff  was  evicte<l  by  one  having  a  lawful  title  and  by  process  of  law.  Greenly 
etal.y.  Wilcocks,^. Johns  Rep  1.  S.  P.  Folliardv.  Wallace  et  al  ibid.  395.  Kent 
\,  IVe'ch,  7  Do.  258.     Sedgviick  \.  Hollenback,ibid.   376.     Clark»  s'.  M'Armlty, 

3  Serg.  &  R.  Rep.  364. 

In  an  action  to  recover  the  price  of  lands,  a  failure  of  title  as  proving  a  want  of 
consid:  ration,  may  be  given  in  evidence  b}  parol  testimony,  elder  grants,  &c.  be- 
fore an  eviction.     Hunt  v.  Leiuis,  1  1}  y's  Rep.  161. 

Th  dtfendnnt  conveyed  certain  land  to  the  phuntijf  by  deed  with  a  covenant  of 
seizin;  thf  plaimiff  afterwards,  ve.cnnve\t'(\,[htii>rf  any  damage  had  accrued  to 
plaintiff,)  to  the  difendu7it ;  it  was  litld  such  re-conve\ance  did  not  operate  as  an 
extinguishment  of  the  original  covenant  n{  seizin  by  the  defendant.  Bennett  v.  Ir- 
ivin  3  Johns.  Rep.  363. 

Ib  an  action  oq  a  covenant  of  seiziri  contained  in  a  deed,  the  defendant  is  not  al- 


COVENANT.  4,4,5 

self  plaintiff,  such  title  is  wholly  immaterial,  and  cannot,  if  set    Chap.  111. 
out,  be  traversed,  it  is  otherwise  in  the  case  of  his  assignee.  '^jjs°i  ngg"*^ 
But  tliough  the  defendant  ma,y  traverse  the  title  in  this  case,  _ 


lowed  to  give  in  evirit-nce  a  title  acqiiiiv  <i  by  him,  the  defenHant,  since  the  bringing 
of  the  action  ;  but  tht-  rights  of  the  partit-s  must  be  determined  accori'ing  to  thi-ir  ex- 
istence and  extent  at  the  time  when  the  action  wascom;nenced.  Morris  y.  Phelps, 
5  Johns.  Rrp.  49. 

In  J\'fassachusetts,  if  the  grantor  in  his  deed,  covenant  that  he  has  a  good  right  to 
convey  when  in  fact  he  has  no  such  I'igbl,  sncb  covenant  is  broken  immediately  on 
executing  the  deed.  Bickford  v.  Page,  2  JMass-  Rf!p  455.  JYTavston  v.  Hobbs, 
'2  Mass.  Hep  433.  Can-well  \.  Wendell,^  Do.  108.  Tivambly  \  Henley, ibid  4il. 
Greenbi)  et  al.  v.  Wilcocks,  2  Johns.  Rep.  1.     Hamilton  et  al.  v.  Jfllson,  4  Do.  72. 

But  if  is  not  broken,  if  the  grantor  were  in  f;)ct  s<ized,  either  by  a  wrong  or  de- 
feasible title.  JMarston  v.  Hobbs,  2  JMass.  Rep.  433.  Bearce  v.  Jackson,  admr. 
4  Do.  408.     Tivambly  v.  Henley,  ibid.  441.     Prescott  v.  Truenian,  ibid  267. 

So  in  JVew  York,\[\  an  aciion  on  a  breach  ot'covenant  of  seizure  in  h  deed,  it  was 
held  that  there  being  a  failure  of  title,  the  covenant  was  broken  as  soon  as  it  was 
ma<ie,  and  a  perff-ct  right  of  action  thereon  descended  to  the  j)ersODal  representa- 
tives of  the  grantee.  Ha/ni/ton  et  al.  v.  Jfllson,  4  Johns.  Rep.  72.  Vide  Lot  v. 
Thomas,  Penning.  Rep.  407. 

Measure  of  damages  on  breach  of  Covenant,  £jfc. 

In  Massachusetts,  in  an  action  founded  on  a  breach  of  covenant  of  a  good  riglit 
and  full  power  to  sell,  the  measure  of  <lamages  will  be  the  consider^^lion  p:i)d  and 
intirest  thereon.  Bickford  v.  Page,  2  Mans.  Rep.  455.  Murston  v.  Hobbs,  ibid. 
433.  Casi<wll\\  Wendell.  ^  Do  108  Smmier  admr.  v.  Williams  et  al  8  Do.  162. 
JKIicholls  V  Walter  et  al  exrs.  ibid.  243.  Harris  et  al.  v.  jY<'-u>ell,  8  Do.  262.  X«- 
iaiid  V.  Stone,  10  Do  459. 

In  another  case  in  an  action  on  a  covenant  of  seizin  and  xvarranttj  of  lands,  the 
measure  of  damages  was  held  to  be  the  value  of  thelanils  at  the  time  of  eviction. 
Gore  V.  Brazier,  3  Mass.  Rep.  523.     Bigeloiv  v.  Jones,  admr.  4  Do.  512. 

But  in  a  later  case  in  the  same  State,  in  an  aciion  tViunded  on  a  covenant  of  seizin, 
the  flam.nges  were  declared  to  be  the  value  of  the  land  at  the  time  of  the  conveyance 
and  interest  thereon  to  the  time  of  judgment.  Caswell  v.  Wendell,  4  Do.  108.  Sed 
vide  Bigeloiv  v.  Junes  admx.  ibid.  512 

In  Connecticut,  in  an  old  case,  in  an  action  founded  on  a  covenant  of  seizin  con- 
tained in  a  deed,  the  measure  of  damages  wi  re  the  consideration  of  the  deed;  but 
in  an  MCtion  founded  on  a  covenant  oi  ivtirraniy  the  measure  will  be  the  vqlue  of  the 
land  at  the  time  of  eviction.     Horsfordv  Wright,  Kirh.  Rep.  3." 

In  a  more  mod-rn  case,  in  an  aciion  on  a  cuvenani  ot  seizin  m  the  sale  of  nnim- 
proved  land,  the  damages  given  were  the  consideration  paid  for  the  land  and  inte- 
rest ihffv&m  ;  but  ill  the  s:de  o' w)/^roTe'/ land,  the  consideration  paid,  without  the 
interest.     Castle  v.  Pierce,  2  Root's  Rep.  294. 

Where  there  had  bet  n  several  convi  yaticis  of  land  with  covenants  of  warranty, 
and  an  eviction  of  the  last  covenantee,  an  intermediate  covenantee  who  has  not  been 
d:inmified,  is  not  entitLd  to  recover  against  a  prior  covenantor.  Booth  v.  Starr  et 
al  1  Con.  Rep.  244. 

The  costs  which  the  vendee  was  put  toj  in  defending  the  action  wherein  he  was 
cvicieil,  must  make  part  of  ihe  daniag'  s,  in  an  action  by  him  against  the  vendor,  for 
a  breach  ot  covenant.  Wa  do  v.  Long,  7  Johns.  Rep.  17.3.  Et  vide  Cox's  heirs 
V.  Strode,  2  Bibb's  Rep.  270. 


440  COVENANT. 

Part.  II.     yet  the  plaintiff  is  not  obliged   to  prove  it  precisely  as  laid,  if 
iss'-'nl-e"^^  he  slipws  a  title  of  tlie  same  kind,  and  that  the  lessor  had  a  re~ 

version  which  is  assigned  to  iiim,  that  is  sufficient.(l)     If  the 

(i)C.(rwitkr. conveyance  to  the  plaintiff'  be  traversed,  it  will  be  incumbent 
*^R^'Tv  ^^  '''"^  either  to  prove  the  conveyance  duly  and  regularly  made, 
Bing.  531.  or  else  a  payment  of  rent  to  him  by  the  defendant.*(2)  But  in 
.„>  ^  the  case  of  a  defendant  who  is  sued  as  assignee  of  a  term,  it 

f  2^  Doe  V.  ,  o  ' 

Parki  r,  cor,  will  be  sufficient  on  the  part  of  the  plaintiff",  to  prove  that  the 
o"'^'Vo^""  defendant  is  in  actual  possession,  or  pays  the  rent.     This  is, 

oiatlorii  num.  ,.-..,  , 

Ass.  1788.  however,  only  prima  facie  evidence,  and  does  not  estop  the  de- 
fendant from  shewing  that  the  title  is  in  another,  under  whom 
he  holds  ;  and  therefore,  in  one  case,  where  a  defendant,  who 
was  sued  as  assignee  of  all  the  estate  of  the  lessee,  traversed 
that  fact,  and  proved  that  he  was  ynder-tenant  only,  (a  rever- 
sion of  a  day  being  left  in  tlie  original  lessee,  it  was  holden  that 

v.ijlloiford      ^i^g  action  was  not  maintainable. v 3)    In  another  case  lessees  for 

t'.  Hatch, 

Dougi  138.  lives  granted  all  their  estate  to  a  third  person  foe  ninety-nine 
Il'iVe  t' Cator  years,  if  the  lessees  should  so  long  live  ;  and  here  also  it  was 
Cowp.  766.     holden,  that  such  grant  being  no  assignment  of  the  freehold,  the 


•  Tlie  case  of  D'^e  v.  Parker, wns  an  ejettment  brought  by  the  lessor  of  the  plain- 
tiff to  put  an  end  to  a  lease  grantefl  bv  one  Mrs.  Purkes  to  the  cletendant  for  twenty- 
one  ycais:,  determinsible  at  the  end  of  ti)urteen  yeers  by  Mis.  Parkes,  or  hi^i  as- 
signs, nn  gK-ing  six  months  previous  notice  to  quit.  The  lease  bring  put  in,  and  a 
notice  by  the  lessor  ol'the  plaintiff  being  proved,  it  was  objected  by  the  defendant's 
counsel,  that  the  lessor  of  thi;  plaintiff  should  produce  some  deed  of  assignment  from 
IShs.  Pai'kes.  But  it  appearing  th<U  (he  defenditnt  had  paid  rent  to  him,  Lord 
Kfnyost  saiil,  thai  was  sufficient  evidence  of  an  assignment,  and  of  the  defendant 
being  his  ttnant.  Vide  ante. 

In  JVeiu  York,  in  an  action  founded  on  a  covenant  of  e-ivnersldp  seizin,  power  to 
sell,  and  for  pcaceafjie  enjoyment,  it  the  vendee  be  evicted  he  can  only  recover  the 
value  of  the  land  at  the  time  of  the  piirclinse -with  interest  for  so  long  a  time  as  he 
pays  mesne  profits,  and  the  costs  of  the  ejectment  that  may  be  brought  against  him, 
but  not  those  of  the  action  for  mesne  profits.  Slants  v.  exrs.  of  Ten  Eych,  3  Caines'' 
Bep.lU. 

In  another  case,  being  an  action  founded  on  a  covenant  nf  seizin,  and  for  quiet  en- 
joyment in  a  deed,  ihf  plaimiff  can  recover  only  the  consideration  money  paid,  -with 
interest  and  the  costs  of  eject ment.     Pitcher  v.  Livirigston,  4  Johns.  Rep-  1. 

In  such  a  case,  the  plaintiff  cannot  recover  damages  for  the  improvement  he  has 
made,  nor  for  the  increased  value  of  the  land.  ibid. 

In  Pennsylvania,  in  an  action  founded  on  a  covfn;int  o{'  Tvaf-rarity  of  title,  in  case 
of  eviction,  the  measure  «f  damages  will  be  the  price  of  the  lands  at  the  time  of 
the  sale,  and  not  the  improved  value  of  the  land.  Bender  y .  Fromberger ,  ^  Dull. 
Ilcp.  441 . 

In  Virginia,  where  lands  are  sold  with  warrantv,  and  the  vendee  is  evicted,  the 
measure  of  damages  will  be  \he  purchase  money,  vAth  interest  andcosts,nn(\  not  the 
I'aliie  of  tlie  land  at  the  time  of  eviction.  I,oivtker  v.  Tlie  Commonwealth,  I  H.& 
Mv7f  Hep   201    Vide  Mills  v.  Bell,  3  Call's  Rep.  320. 

In  South  Carolina,  the  value  of  the  lands,  at  the  time  of  eviction,  is  the  measure 


COVENANT.  q^y 

grantee  could  not  be  sued  by  tlie  original  lessor  as  the  assignee    chap.  in. 
of  the  estate.fl)     So  in  a  case(!2)  at  Nisi  Prius,  where  ti»e  de-  By  or  against 

II  111/1  ••11  1        1  •         assignee. 

fendant  proved  that  her  liusband,  (the  original  lessee,)  by  his 

will  left  his  freehold  messuages,  and  also  his  personal  estate,  to  (,^  j.,^,,j^P 
two  persons,  in  trust  to  permit  the  defendant  to  receive  and  ^ 'by  y^ T.iy 
take  the  rents,  issues,  and  profits  of  his  real  estate,  and  the  in- 502. 
terest  of  the  personal  estate  during;  her  widowhood  ;  and  after 

1  1  •  •  .  11     ..  1    •  -2)  Averill  T.. 

her  death,  or  second  marriage,  in  trust  to  sell,  &c.  and  in  case  Holmes, 

of  such  marriage  to  pay  her  an  annuity  of  50/.  and  made  those  ^*"''^^.^"^^' 

persons  executors;  Mr.  J.  Lawrence   held  the  defendant  notisos. 

chargeable  as  assignee,  although  she  had  always  continued  in,,,  ,, 

°     .  .  °        .  °  .  .  "^  .  (3)  Mayor  ot 

possession  of  the  premises;  and  in  a  still  later  case  it  was  de  Carlisle  r. 

termined,  that  a  devise  of  the  mere  equity  of   redemption  of^'^'^"j"v„_ 

a  mortgaged  term  cannot  be  so  charged  in  a  Court  of  Law.(3) 

Whether  a  mortgagee  taking  by  way  of  assignment  the  whole  j J  ^^f °"  ^'' 

term,  but  who  never  entered  jnto  possession  of  the  premises,  can  Uougi.  455. 

be  so  charged,  must  be  considered  as  a  doubtful  question;  in  (-5)  yvaikerr 

one  case  it  was  held  that  he  could  not,(4)  and  though  this  deci- Kei  v.3,cited 

sion  has  been  doubted  by  the  highest  authority,(5)  it  has  never  westei  dale r 

been  expressly  over-ruled.(6)     Assignees  of  a  bankrupt  cannot ^'•''■'/l'- 

be  charged  as  assignees  of  a  term  which  was  in  him,  merely  upon  stone  v. ' 

the  commissioner's  assignment  to  them. (7)     To  support  an  ac-^^*"^^f*  ^• 

^        .         '  '■'■  also  cited 

tion  against  them  as  such,  it  must  also  be  proved  that  they  ac- 7  East,  341. 
cepted  the  assignment  of  the  premises,  and  possessed  themselves  ,^.  y .   „ 
of  them.    Merely  putting  the  premises  up  to  auction,  for  the  pur-  East,  497. 
pose  of  ascertaining  their  value,  is  not  such  an  exercise  of  '"ight  as /7\  p^ypj^Q,, 
will  make  them  liable  to  the  action.(8)     But  if  on  being  applied  "•  l>aiion, 
to  for  the  key,  the  assignee  answers  that  he  will  keep  it  till  the^js'.^'' 
end  of  the  quarter  to  see  if  he  can  let  the  premises,  tliis  act  will 
make  him  liable  as  assignee  of  the  term ;  for  though  he  may  re-  Richardson, 
fuse  it  at  first,  he  cannot  take  it  in  part,  and  afterwards  reject^  *^'"^'' '^^^• 
it  when  he  finds  it  will  not  answer.(9)(/t)     So  where  on  a  bank-  (9)  Brome  v. 

Robinson,  cor, 

KeiiyoM  C.  J. 
of  damages  in  an  action  of  covenant,  brought  for  a  breacli  of  warranty,  and  not  the  at  N.  P.  cited 
consideration  mofieyat  the  time  of  purchase.  Liber  v.T/ieexr.  of  Parsons,  1  Bay's  i^i'i-  339. 
Hep,  19.   Guerard  v.  Riners,  ibid.  '265. 

In  Kentucky,  if  land,  conveyed  by  general  warranty,  be  lost,  its  value  will  be  the 
measure  of  compensation.  Jlarlimdv.  Eastland,  Hard.  Ilel).  590.  Et  vide  Cox's 
heirs  v.  Strode,  2  Bibb's  Rep.  276. 

If,  on  a  conveyance  of  lands,  with  a  covenant  of  seizin,  part  of  the  land  become 
lost  by  superior  title,  the  measure  of  damages  will  be  the  value  ot  the  part  lost,  taken 
in  proportion  to  the  price  for  the  -w/iole.  Morris  v.  Phelps,  5  Johns.  Rep.  49.— 
Asi.  Ed. 

(A)  If  a  covenant  be  broken,  it  becomes  a  ehose  in  action,  and  cannot  be  as- 
signed so  as  to  enable  the  assignee  to  bring  an  action  in  his  own  name.  (Jreenby  et 
al.  V.  Wilcocks,  2  Johns.  Rep.  ] . 


448  COVENANT. 

Part.  IT.     ruptcy  happening  in  June,  and  an  assignment  being  made  in 

^»ssi"!fe<'"^  Ji</»/,  the   assignees  actnually   took    possession  and  continued 

««_«____  in  possession  till  march,  when  they   put  up  the  lease,  fixtures, 

and  stock,  but  failing  to  sell  the  lease,  returnyd  the  keys  to  the 

landlord ;  it  was  held,  that  by  these  acts  they  had  made  them- 

(1) Hanson r.  selves  liable  as  assignees  of  tlie  term.(l) 

SteV'  nson, 

1  B.  &  A.  303. ^ 

A  ciivenunt  to  run  with  the  land,  and  bind  the  assignee,  must  relate  to  the  thing 
granted,  and  the  act  covenanted  to  he  done  must  concern  the  demised  property. 
J\''esbit  V.  J<'esbit,  Rep.  in  Co.  of  C'o7if  318.  Tat/l   Rep.  82. 

Ci'V- nunts  running  with  land,  bind  the  assigiiet ,  wh' thi-r  he  be  named  or  not 
such,  to  keep  the  premises  in  good  order,  &c.  Pollard^.  Schaafer,  1  Dall.  Rep. 
211. 

If  a  lessee  covenant  to  pay  rent  clear  of  all  charges  and  assessments  whatt  ver,  it 
is  a  cnvenunt  running  witli  ilie  land  and  binding  upon  the  assignee.  Sandxvith  v. 
Desilver,  1  Iiro-wne''s  Hep.  t2'il. 

It  lies  against  <  x.  cuiors  and  administrators  of  a  gran'ee  in  fee,  where  the  gran- 
tee covenants  for  himsrlf  his  ixecutors,  &c  t|j  p'-i)  a  rent  in  fee,  although  th^  land 
goes  tn  the  heirs.     Exrs.  of  Van  Renssetlaer  v.  exrs  of  Putner,  2  Johns.  Cas.  17. 

"Wheie  ^^.  gave  bond  to  li.  lorebnild,  &c.  if  the  wall  gave  way,  &c.  and  tin  walls 
did  give  way,  and  li.  solil  the  house  tn  C.  and  assgned  also  the  bond,  wlin  gave  nmice 
to  Ji.  and  requested  him  to  r  -builil,  &i-.  it  was  held  the  notice  from  the  assignee  C. 
was  sufficient.    Fan  Vechten  v.  Graves,  4  Johns.  Rep.  403. 

Where  the  lessee  expressly  covenants  for  the  payment  of  rent,  he  assigns  over  the 
pt:emisfs,  and  the  lessee  receives  rent  from  the  assignee,  still  an  action  ot  covenant 
will  lie,  brought  by  ihe  lessor  agninst  the  lessee,  for  subsequent  rent  due  from  the 
i'«-nt^sed  premises.  Kunckle  v.  fVynick,  1  Dall.  Rep.  305. — Am.  Ed. 


(  ¥9  ) 


CHAP.  IV. 

OF  THE  EVIDENCE  IN  THE  ACTION  OF  DEBT. 

SECTION  I. 

On  Specialties. 

The  action  oi  debt  is  founded  either  on  contract,  or  on  a  duty 
raised  by  operation  of  law.     The  former  mav  be  either  by  spe-  Ch.  IV  s.  1. 
cialty,  or  on  a  simple  contract.     In  the  case  of  an  action  tound-       .actum. 
ed  wholly  on  a  specialty,  littlf*  more  need  be  said,  than  to  refer  ■ 

to  what  has  been  already  observed  on  the  action  of  covenant ; 
for  in  this  case,  as  in  that,  the  rules  of  pleading  require  that 
some  one  fact  only  shall  be  traversed. (a)  The  only  plea  which 
denies  the  contract  itself,  is  the  same  as  in  that  action,  viz.  the 
plea  of  non  est  factum;  which  in  cases  of  bonds  for  payment  of 
money,  puts  the  plaintiff  on  proving  nothing  more  than  the  ex- 
istence of  the  deed.     Any  thing  which  goes  to  avoid  it,  or  to 


(a)  Debts  for  which  an  action  of  debt  may  be  bfought  at  common  law,  may  be 
classed  «iiider  four  g^nt-ral  htwds  :  1  5t  Jiidgiuents  obtained  in  a  Court  f)f  rt-coid  on 
a  suit.  2d.  S|ii  cialtits  acknowl'-dged  to  be  entcii'd  of  reciiid.  31.  S|)^ci»ities  in- 
dented or  not  in<l<rnt(-d.  4th.  Contracts  w  thnut  speci  llifs,  ••iiher  ex|)res8  or  ira- 
pli.  d.  Per  M'Kean  C.  J.  Respublica  v.  Le  Caz-et  ul.  2  Dull.  Rep.  118.  1  TeiUes^ 
Rep.  .i5. 

It  seems  that  wherever  indebitatJia  assumpsit  hes,  debt  fnay  be  brouglit.  United 
Statexv.  Colt,  I  Peters'  Rep    U9. 

Ii  lies  to  recover  the  annual  interest  of  money  payable  on  bond,  when  the  princi- 
pal IS  not  due.   Sparks  v.  Garrigues  et  al    I  Bimi   Rep.  152. 

Though  an  instrument,  taken  in  the  Adiniralty  be  vtiid  as  a  stipulation,  yet  it 
may  ht  gooil  as  a  C'>ntract,  on  whirh  an  ae.tion  of  debt  or  special  assumpsit  would 
lie.  LeCaze  \  The  State  of  feniisi/lvania,  ^c.'i  Dull.  Rep.  118.  1  Yeates''  Rep. 
55    5.  C.  Ill  Hisb  Court  of  Errors,  .Mdis.  Rep.  5\. 

So  an  action  of  debt  will  lie  on  a  defectiTe  fm  ilieiimitig  bond,  even  after  an  unsuC' 
•essful  motion  has  been  made  upon  it.  H  wleti  v.  C/iambei layne,  1  Hash.  Rep. 
474.  Enidt  SterwdVt  v.  f.ee,  3  Cu'Ps  Rep.  421.  Rihby.  CaiUlionie,  \  Hash. 
Rtp.  \\i  Hooey.  Tebbsetux.  \  Munf.  Rep.  501.  .Booker's  exr.  v.  Jt  Roberts, 
1  Call's  Rep.  243. 

Debt  ma)  be  brought  on  an  ini^tiunient  which  does  not  of  itself  ascertain  the  sum 
due  ;  but  in  that  case,  there  must  be  in  tb.  insiruuieni  a  ri  feience  to  some  other  in- 
strument, where  the  same  is  ascertained,  to  some  known  rule  of  compuiHiion,  or  to 
an  assessment  made  to  some  known  person.  Clark  v.  Campbell,  CInpmun's  Bep^ 
■'7.— Am.  En. 
3  M 


450  liEBT  ON  SPECIALTIES. 

Part  II.     deny  any  of  the  other  matters  stated  in  the  declaration,  must  be 
factum',      specially  pleaded  ;  and  therefore,  in  the  case  of  a  bail  bond,  to 

.  which  this  plea  only  is  pleaded,  the  plaintiff  has  only  to  prove 

the  execution  of  the  bond,  and  need  not  prove  the  writ  or  as- 
signment by  the  Sheriff.  By  the  rules  of  the  Common  Law,  the 
penalty  of  a  bond,  or  other  instrument,  was  in  all  cases  consider- 
ed as  the  debt,  and  therefore  it  was  never  necessary  to  give  any 
evidence  of  the  actual  damage  which  the  plaintiff  had  received  ; 
but  the  defendant,  if  aggrieved,  was  obliged  to  apply  to  a  Court 
of  Equity  for  relief.  The  Statute  of  8  &  9  Will.  3,  c.  11,  has 
Assessment  of  jjj^j,Qjm.gj  ^  more   equitable  mode  of  proceeding  in   cases  of 

(lamagt'S  iiii-  *  . 

<)eM-  Slat.  8  &c  bonds  for  performance  of  covenants  ;  and,  therefore,  in  these  and 
"*•''■  all  other  actions  for  a  penalty,  it  is  now  necessary  for  the  plain- 
tiff to  suggest  the  breach  complained  of  on  the  record,  either  by 
specially  stating  it  in  his  declaration  or  replication;  or  where 
the  declaration  is  general  and  judgment  is  given  by  default,  or 
on  demurrer,  by  suggestion  subsequently  entered  on  the  roll;(l) 
vi)  Koiiesti.  and  in  the  two  former  cases,  if  only  one  breach  be  alleged,  it  is 

jiosew.-ll,  .  .  .  .     *^  .  o      ' 

5  T  Rep!       sufficient  to  state  it  without  saying,  •'  according  to  the  form  of 
538^  Hardy    ^j^g  Statute, "("2)     Upon  the  breach  so  assigned  or  suggested,  the 

•?'.  Bern,il)i(1.  >    K    J  f  a  !5& 

540.  Etiier-   jury  find  the  actual  damage  sustained  by  reason  of  the  breach, 
*'^-^^o  ;l!"^n"    as  well  as  the  nominal  damages  by  reason  of  the  detention  of 

soil,  8  1 .  Rep.  °  . 

255.  the  debt.     To  enable  them  to  do  this,  the  plaintiff  must  be  pre- 

(■■'>)  Toombs    P^'fid  with  evidence  to  prove  the  extent  of  his  injury,  the  same 
V.  Painter,      as  if  he  had  brought  an  action  of  assumpsit  or  covenant;  and 
■*^''   ■      where  the  condition  does  not  appear  on  the  declaration,  or  in 
the  pleadings,  but  is  only  suggested  after  judgment,  he  must 
also  give  some  evidence  of  the  bond  to  shew  that  the  condition 
is  as  suggested  ;  but  it  will  be  sufficient  for  this  purpose  if  the 
plaintiff's  attorney  swears  that  the  bond   produced   is  the  in- 
strument delivered   to  him   to   bring  the  action,  and  that  he 
son  T,.\fars-"  ^'^ows  of  no  Other  of  the  same  date  :   without  calling  the  sub- 
den,  M.  s.      scribing  witness.CS) 

S.  c.  '^  It'  actions  founded  on  record,  if  the  defendant  deny  the  re- 

Ante,  57.        cord,  it  must  be  by  plea  of  )iid  tiel  record,  the  mode  of  proof  in 
which  case  has  been  before  noticed. (6) 

(b)  Debt  lies  On  a  ju<'ginent,  fairly  obtained  in  another  State;  for  such  judgment 
is  conclusive  evidence  of  a  debt.  ^Incireivs  \.j\Iontgomerii,  VJ  Johns.  Hep.  1G2.  Sed 
vide  ante,  p.  67. 

It  seems,  that  the  proper  plea  to  an  action  of  debt  on  a  judgment  of  a  Court  of 
another  State,  is  7uil  tiel  record,  ibid. 

An  action  of  debt  may  be  brought  on  an  unsatisfied  judgment,  obtained  in  the 
Courts  of  a  sister  State.  Sterne  v.  Spalding,  Kirb.  Rep.  177. 

Quere,  Whether  any  action  other  than  ti  scire  fucia.'!,  can  be  raaintaioed  upon  a 
judgment  iu  detinue.   Withers  exr.  v.  Withers  exr.  G  Munf.  Rep.  10. 


DEBT  ON  SPECIALTIES. 


451 


The  Statute  of  Limitations  not  having  provided  for  the  case  ch.  iv.  s.  i. 
of  actions  on  specialties,  cannot  be  pleaded  in  bar  of  any  action   P'*^a  of  pay- 
founded  on  them  ;  but  if  the  obligee  of  a  bond,  or  other  creditor   _ 
by  specialty,  lie  by  a  long  time  without  claiming  his  debt,  pay- 
ment will  be  presumed.     This  payment  should  be  pleaded  as 
having  been  made  after  the  day,  as  well  as  at  the  day,  for  the 
proof  of  any  interest  being  paid,  or  other  act  of  the  defendant, 
confirming  the  instrument,  after  the  day  of  payment  mentioned 
in  the  condition  of  a  bond,  would  preclude  the  defendant  from 
any  such  advantage  on  the  plea  of  solvit  ad  diem,  though  ever 
so  long  a  time  had  elapsed  since  such  payment.(l)     In  cases  (O^o'"'^lant' 
where  the  presumption  arises,  instead  of  the  defendant  being  i  siia.  652. 
called  on  to  prove  his  affirmative  allegation  of  payment,  the  onus 
will  lie  on  the  plaintiff  to  rebut  the  presumption.     The  nature 
of  this  presumption,  and  the  kind  of  proof  sufficient  to  repel  it, 
has  already  been  spoken  of  in  its  proper  place.(c)  Ante,  47. 


In  Connecticut,  an  action  of  debt  will  not  lie  an  a  judgment,  (unless  the  plaintift" 
has  no  other  mode  of  obtaining  the  fruit  of  his  judgment)  such  an  action  being  es- 
teemed unnecessary  and  vexatious.   Welles  v.  Dexter,  1  Roofs  Rep.  253. 

Debt  is  not  sustainable  on  the  judgment  of  a  Court  possessing  no  jurisdiction. 
Kibbev.  Kibbe,  JGrb.  Rep.  119. 

In  an  action  of  debt,  on  a  judgment  by  foreign  attachment,  the  declaration  must 
allege  that  satisfaction  of  the  former  judgment  could  not  be  obtained.  Waldo  v. 
Mumford,  ibid.  311. 

Whether  under  the  plea  ofraV  debet,  to  an  action  of  debt  on  a  judgment,  the  de- 
fendant can  give  any  special  matter  in  evidence  ?  jMeyer  v.  Jil'Leaii,  1  Johns.  Rep. 
509.  Vide  ante,  p.  58,  n.  (e) 

In  an  action  of  scire  facias,  founded  on  a  judgment,  under  the  plea  oi  payment, 
accord,  and  satisfaction,  cannot  be  given  in  evidence.  Kisham  v.  JVichola,  1  Root's 
Sep  75. 

In  a  similar  action,  un<ler  the  plea  of  payment,  the  defendant  gave  in  evi- 
dence, that,  when  he  executed  the  bond  and  warrant  of  attorney,  on  which  the  ori- 
ginal judgment  was  obtained,  the  plaintiff  promised  to  cancel  it,  on  an  t-vent  which 
had  occurred  since  the  judgment.  Martzeltv.  Rdss,  1  Riim.  Rep.  289. — Am.  Ed. 

(c)  On  a  plea  of  payment  to  a  bond,  the  Court  will  presume  everything  paid, 
■which,  ex  equo  et  bono,  in  equity,  and  good  conscience,  ought  not  be  paid.  HoHiiigs- 
■uiorth  V.  Ogle  et  al.  1  D(dl.  Rep.  257. 

In  Pennsylvania,  where  there  is  no  Court  of  Chancery,  under  a  plea  of  payment, 
in  an  action  on  a  bond,  and  to  prevent  a  failure  of  justice,  mstahe,  or  luant  of  consi- 
deration, may  be  given  in  evidence.   Sivift  v.  Jfiwhim  et  al  I  I)  I'l.  Rep   \7 

On  a  plea  of  payment  to  an  action  of  debt  on  m  bond,  the  defndant  may  t^iv^-  in 
evidence,  that  wheat  was  di  livered  to  the  plaintiff  on  Mcconnt  nliho  bond,  at  »  cer- 
tain price,  and  that  the  defendant  assigned  sundry  ilehts  to  the  plaintiif.  [/HC  of 
which  were  collectid  by  th-  plaintiff,  and  part  lost  hy  tkis  indulgence  or  negligence. 
Buddicum  v.  Kirk,  3  Crunch's  Rep.  293. 

On  a  plea  of  payment  to  a  bond,  evidence  msy  be  giv^- n,  that  he  plaintiiT  wwg  ab- 
•ent  beyond  seas,  to  extinguish  interest    J/'tVi.'/v.  Txirner,  1  CaWs  Rep.  l.)3. 

In  aa  action  of  debt,  brought  on  a  bill  of  exchange,  the  defendant  m;iy  give  in  evi- 


45^  DEBT  ON  SIMPLE  CONTRACTS. 


SECTION  II. 

On  simple  Contracts. 
Pari  II.  "Pq  actions  of  debt  founded  on  the  simple  contract  of  the  party, 

Nil  dt-bet.  J  .  '  r       J ' 

or  where  a  specialty  or  record  is  not  the  gist  of,  but  only  in- 
(l)Warieii  ducement  to  the  action  ;(1)  as  in  an  action  against  a  Sheriff  for 
V.  C'usei,       an  escape  ;  or  for  rent  on  an  indenture  •,(•2)  or  aarainst  an  execu- 

SLoi.lRaym.^  '  ^       -.       „  I'll  •  c         j     j 

5g9  tor  on  a  devastavit ;  3  >  and  in  like  manner  in  cases  founded  on 

a  duty  raised  by  operation  of  law,  the  rules  of  pleading  allow  a 

332.  Whiii.  r  much  more  general  defence,  namely,  the  general  issue  of  nil  de- 

Cow'^ssa    '  ^^K^^)    This,  like  the  plea  of  non  assumpsit,  puts  the  whole  of 

(S)  Jones 

j'o  °'^  ,'  ^q      dcnce,  under  ilie  plea  of  p-iyrai-nt,  a  lender,  to  extinguish  the  interest.  Skiptoith.  v. 
Bui  N.  P.       jyicrton,  2  Do.  277. 

170.  In  an  Hciion  of  debt,  brought  on  a  bond,  a  pi'  a  of  conditions  performed,  is  equiva- 

lent to  a  plt-a  of  payment.  Hammett  s.  Bi*!lett,  1   Call's  Rep    567. 

Where  two  pleas  of  payment  to  a  bond  werej  int-d,  one,  Ae/bre  the  day,  the  other 
at  the  ilaj,  It  was  declared  by  the  Court  to  be  irr.-gular,  and  one  of  thein  ordered 
lo  be  sliickfn  out.  Tluiver  v.  Rogers,  I  Johna    Cas   152. 

A  tender  ol  the  principal  and  interest,  due  on  a  bond,  is  no  bar  to  an  action 
brought  on  a  bund  wiih  a  penalty.  Jlcmny  v    Harris,  2  Johns.  Rep.  24. 

Bills  of  f  xchMuge,  acc>  pteil  in  pH\  inent  ot  a  bond,  wdl  exiinguish  a  demand  on  it 
so  as  to  release  the  surety.  Watts  v.  fVilling,  2  Dull.  Rep.  100  Vide  ante,  409, 
^x.{t.) 

When  a  bond,  from  length  ot  tirar,  will  be  presurae<I  paid.     Vide  ante,  p.  51, 

n.  (a) 

And  under  \.\\^;  plea  of  payment  with  notice ,yraM(/,  cither  in  the  execution  or  con- 
sideration of  a  bond,  max  be  given  in  evidericc,  and  the  pira  of  "  layman  and  unlet- 
tered,''' iic.  is  not  ntcessar>.   Baring  v.  Shipfien,  2  Rinn  Rep.  154. 

On  the  issue  of  no7i  foh'it,  to  no  ail  ion  of  debt,  the  practice  is  to  enter  the  verdict 
for  th>-  sum  found  to  be  actualh  due,  wiihonl  any  other  determinatioD  of  the  issue. 
Thompson  \.Musser,  1  Dull.  Rep.  458.— Am.  Ed. 

(d)  An  action  of  debt  will  lie  where  a  sum  of  money  is  due  by  express  agreement, 
eith'  I'  io  willing  or  by  parol,  where  thi-  nin  mm  h  fixed,  and  does  not  depend  on 
future  calculation.   Reftpublica  v.  Le  C  .'z^,  2  Dull.  Rep.  118. 

In  an  Mcuon  of  debt,  ih.-  declaiatinn  -li.iiild  stale  the  demand  with  certainty. 
Wilson  V.  Lenox  et  al.  1   Crunches  fiefi.  194. 

It>  MaTyland,  an  ai'iion  'it  debt  will  not  lie  on  a  promissory  note.  Lindo  v.  Gard- 
ner, \    Cianch's  Rtp   343. 

In  Virginia,v\  action  of  d^-bt  will  not  lie  against  the  acceptor  of  a  bill  of  exchange- 
Smith  V.  Segar,  1  H  &  Mnnf.  Rep.  394. 

Whrihei  an  action  of  (1(  lit  will  li-  .israr.is'  r-.x  cutors  on  the  simple  contract  of  the 
testatoi  .'  Carson  v.  Hood's  exrs.  4  DalL  Rep  108. 

An  action  of  debt  will  lie  on  an  instrument  in  the  form  of  a  bond  with  a  penalty 


DEBT  ON  SIMPLE  CONTRACTS.  ^53 

the  case  in  issue,  makes  it  incumbent  on   the  plaintiff"  to  prove  Ch  iv.  s.  2. 
every  thing  which  he   was  obliged  to  state  in  his  declaration,    ^j",,t',."c,'['; 
and  enables  the  defendant,  on  his  part,  to  prove  any  thing  which  _____^_ 
shews  the  plaintiff"  has  no  demand  on  him.      It  has  been  held  in 
some  cases,(l)  that  a  defendant  may  avail  himself  of  the  Sta- ^j]] ,^|;^^  ^• 
tute  of  Limitations  on  this  plea;   but  the  modern   practice  has  1  Lev.  no. 
been  to  plead  the  Statute  specially  ;  and  if  the  question  were  to  (^j^^'J^^'j^*' 
arise,  it  would  most  probably  be  held  that  such  plea  was  abso- '  Ld.Raym. 
lutely  necessary  to  enable   the  defendant  to  avail    himself  of  1  Saik.  278! 
the  Statute  :  the  same  reason  applies  to  this  case  as  to  the  case    ,  ,^. . 

.  .  (2)  Virle 

oi  assumpsit,  namely,  that  notwithstanding  the  Statute,  the  debti  \Viiii«ms' 
still  exists,  for   the  remedy  only  ia  barred. (2)     On  such  a  plea,  ^''""'''■'7' ^ 

.       •'  •'  ^  .  "^  .        'iS.?,  n.  (2.) 

the  replications  and  evidence  would  be  the  same  as  in  the  action  Q.mnock 
of  assumpsiL{c)  lS»vv!'^%k. 

anf)  a  condition  to  be  void  on  payment  of  a  less  sum,  but  ivithojit  a  seal.  Hanuood  et 
al.  V.  Crowell  et  ul  2  Hayw.  Rep.  396. 

In  an  action  of  debt  lor  n  nl,  the  defendant  on  the  plea  of  nil  debet,  may  give  in 
evidence  any  special  oircuinsiarices,  shewing  that  the  rent  ought  to  be  apporlioiied. 
J\''ewton  V.  Wilson,  3  H.  &  Mnnf.  Rep.  470. 

In  seems,  that  a  7iarr.  in  debt,  claiming  no  precise  sum  to  be  due  and  detained, 
■would  be  bad.   U.  States  v.  Colt,  1  Peters'  Rep.  154. — Am.  Ed, 

(e)  Vide  ante,  p.  420,  n  [b) 

In  Connecticut,  wh'  re  bunds  are  barred  by  seventeen  years,  an  acknowledgment 
of  the  debt  will  not  revive  the  acton,  and  thereby  save  the  bond  out  of  the  Statute. 
Gustin  V.  Brattle,  Kirb.  Rep.  299. 

There  is  a  species  of  action  peculiar  to  that  State,  called  an  action  of  6oofr  rft;6i,  un- 
der the  general  issue  of  which,  the  Statute  of  Limitations  may  he  given  in  evid'iice. 
Miller  v    Grosvenor,  2  Root's  Rep.  208. 

In  J\!e\v  York,  under  the  issue  of  seizin,  in  an  aciion  of  dower,  the  Statute  of  Li- 
mitations cannot  bi  given  in  evidence,  but  must  be  pleaded.  Hitchcock  et  nx.  v.  Har- 
linglon,  6  Johns.  Rep.  290. 

In  ihe  Supreme  Court  of  the  United  States,  ii  was  in  one  case  agitated,  hut  not 
decided,  whtlher  the  Statute  of  Li  nitai ions  would  be  available  to  the  def<-ndant, 
in  an  acton  of  debt  under  the  plea  of  nil  debet?  Lindo  v.  Gwdner,  i  Crancli's 
Rep.  343. 

After  a  verdict  for  the  plaintiff,  in  an  action  of  debt  under  the  plea  of  nil  debet,  it 
is  no  ground  for  arresting  juilgnieni,  tlixt  the  cUirn  as  shewn  by  the  declaration, 
was  iiaired  by  the  Statute  ^'f  Li'uitaiions  ;  for  it  will  be  intended  that  if  the  Statute 
were  given  in  evidence,  the  plaintiff  rebutted  it  by  soiue  oiher  eviiience  which 
avoided  its  operation.  Alnrdock\.  Rerndun's  e.vrs   4  '/  iS  JVTunf  Rep.  200. 

Under  tlie  plea  o( nil  debrt,  to  an  action  of  detii  brought  on  »  i-enul  Statute,  the 
Act  of  Limitations  may  be  given  in  evidence.  JVatson  v.  Anderson,  Hardin's  Rep. 
458. 

If  the  defendant's  accounts  are  barred  bv  the  Statute  of  Limitations,  they  cannot 
be  used  as  a  set-off.  Gilchrist  v.  Williams,  3  Marm.  Rep,  237. — Am.  Ed. 


(  451  ) 


CHAP.  V. 

OF  THE  EVIDENCE  IN  ACTIONS  ON   STATUTES. 

SECTION  I. 

On  such  as  are  called  Penal. 

t'art  ir.  VVrere  a  certain  sum  of  money,  or  so  much  as  may  be  ea- 
Statut"s''    sily  rendered  certain  by  calculation,  is  given  by  way  of  penalty 
for  any  offence,  either  to  the  party  injured,  or  to  a  common  in- 
former, the  Statute  create?  a  duty,  the  performance  of  which 
may  be  enforced  by  the  action  of  debt.ia)     To  this  action  the 
defendant  may  plead  either  nil  debet,{b)  or  not  guilty,  at  his 

(a)  In  many  cases,  although  a  Statute  declares  an  act  void,  the  Courts  will  con- 
strue it  to  mean,  it  is  voidahie.     Turrell  v.  JMomiey,  I  JMurphey's  Rep.  401. 

In  a  penal  Statute,  or  will  never  be  construed  and,  so  as  to  make  it  more  penal. 
-  The  State  v.  Kearney,  1  Rt.'ffin''s  Rep.  53. 

Penal  Statutes  must  be  construed  strictly,  according  to  the  intention  of  the  Legis- 
lature ;  anil  where  not  remedial,  are  not  to  be  extended  by  equitable  principles. 
JMelody  v.  Reab,  4  JMass  Rep.  471. 

A  penal  Statute  which  may  be  construed  as  authorising  either  a  summary  remedy, 
or  an  action  in  the  ordinary  course  of  proceeding,  shall  be  taken  to  mean  the  latter. 
Bennett  v.  Wurd,  3  Caines'  Rep.  259. 

Qiiere,  How  far  the  innocence  of  intention  will  excuse  the  infraction  of  a  penal 
Statute,  vide  Bakery.  Richardson,  I  Coweii^s  Rep.  77,  n.  a.  Anth.  JV.  P.  Rep. 
150,  n.  a. 

When  a  pfnalty  is  given  by  Statute,  and  an  action  on  the  case  is  provided  for  its 
recovery,  an  action  on  the  case  for  a  tort,  is  intended,  and  not  in  assumpsit,  for  in 
such  case  no  assianpsit  is  implied.  Peabody  v.  Hoyt,  10  JMass.  Rep.  36. — Am.  Ed. 

(6)  In  an  action  of  debt  brought  for  a  penalty,  nil  tkbet  is  the  most  proper  plea. 
Stilson  V.  Tobey,<2  JMass.  Rep.  521. 

In  an  action  of  debt,  brought  to  recover  double  the  value  of  a  specific  article  as  a 
penally,  the  plaintift'  may  recover  a  less  sum  than  he  demanded.  Perrin  v.  Sikes, 
1  Day''s  Rep.  19. 

In  an  action  of  debt,  qui  tarn,  not  guilty,  is  a  good  plea.  Burnham  v.  Webster, 
5  JMass.  Rep.  26G. 

The  defendant  pleaded  nil  debet,  and  payment  to  an  action  of  debt  on  a  judgment 
in  the  Supreme  Court  of  Pennsylvania  ,-  and  it  was  held  he  was  bound  to  produce 
and  prove  the  record,  or  an  exemplification  thereof.  Rush  v.  Cobbett,  2  Johns. 
Cas.  256. 

Quere,  Whether  it  be  the  general  issue  to  an  action  of  debt  on  a  jmlgment,  as 
to  entitle  the  defendant  to  give  special  matter  in  evidence,  pursuant  to  a  notice  for 
that  purpose  ?  JMeyer  v.  JM'Lean,  1  Johns.  Rep.  509. 

It  is  not  a  good  plea  to  an  action  of  debt  on  recognisance ,  nor  to  an  action  foaaded 
on  a  record  or  specialty,  BulUs  cdm.  v.  Gidikns  et  al.  8  Johns.  Rep.  64. 


ACTIONS  ON  SI'ATUTES.  455 

election  ;(l)  and  on  either  plea  it  will  be  incumbent  on  the  plain-  ch.  v.  s.  1. 
tiff  to  prove  that  the  defendant  has  committed  the  acts  imputed     ^"  P'^"'*' 
to  him  ;  to  prove  which,  evidence  must  be  adduced  of  the  whole        ' 
of  the  affirmative   matter  mentioned  in  the  declaration.     But^j^yj^,^,^. 
when  the  declaration  negatives  any  fact  which  the  defendant!''"  q""t;'m 7,. 
alone  can  be  prepared  to  prove,  it  seems  to  be  incumbent  on  j^'f.'^, "4(5.2. 
him  to  prove  the  affirmative  :  for  instance,  in  an  action  on  the  Buj.  N.  P 
game-laws,  which  prohibit  all  persons,  unless  possessed  of  cer- 
tain qualifications,  from  killing  game,  it   is  agreed  that  proof  of 
the  defendant  having  killed  game,  or  attempted  to  do  so,  by  using 
a  dog,  a  gun,  or  other  engine  for  that  purpose,  will  be  sufficient 
on  the  part  of  the  plaintiff",  in  an  action  ;  and  the  defendant  must 
prove  that  he  is   within  one  of  the  exceptions  which  give  the 
qualification.     But  on  the  question,  whether  it  was  not  incum- 
bent on  the  prosecutor  to  give  general  negative  evidence  on  an 
information  before  a  magistrate,  the  Court  was,  in  one  case,(2)  (2)  Vuie  Rex 
equally  divided  ;  and  even  in  actions  where  the  negative  matter  j'£^'^"*^gg,, 
is  equally  capable  of  proof  by  the  plaintiff,  as  in  an  action  for 
sporting  without  a  certificate,  it  should  seem  that  the  plaintiff 
should  be  prepared  with  evidence,  to  prove  a  search  at  the  pro- 
per office  nearest  the  defendant's  residence,  where,  according  to 
the  provisions  of  the  Act,  such  a  certificate  would  be  granted, 
and  that  no  such  certificate  was  entered  there  ;  for  though  the 
general  rule  is,  that  the  affirmative  only  need  be  proved,  yet  we 
had  very  early  occasion  to  observe  that,  where  a  man  is  charged 
with  a  transgression  of  the  law^  and  it  is  in  the  power  of  theA.iite,  8, 
other  party  to  prove  the  negative,  the  rule  admits  of  an  excep- 
tion.    I  must,  however,  here  observe,  that  in  those  actions  for 
sporting  without  a  certificate,  which  have  fallen  within  my  ex- 
perience, no  such  evidence  has  been  required. 

The  defendant  may  also  avail  himself  on  the  general  issue,  of 
the  suit  not  having  been  commenced  in  due  time,  which,  by 

In  debt,  where  a  deed  is  inducement  to,  and  in  matter  of  fact  the  foundation  of  the 
action,  7iil  debet  may  be  pleaded.  JVIinton  v.  JVooihuorth  et  al  11  Johns.  Rep.  474. 

It  is  a  good  plea  in  debt  for  an  escape  from  the  gaol  liberties,  ibid. 

The  plea  oi  7ul  debet  to  an  action  on  a  judgment  obtained  in  a  sister  State  is  bad, 
under  the  Constitution  and  Act  of  Congress  of  1790.  Armstrong  v.  CnrsoiCs  exrs. 
2  Dull.  Rep.  302.     Contra,  Wright  v.  Towers,  1  Browne's  Rep.  Jipp.  i. 

Wherever  a  Statute  gives  a  right  to  recover  damages  reduced  to  a  sum  certain,, 
pursuant  to  the  provisions  of  suclj  Statute,  an  action  of  debt  lies,  it  110  other  specific 
remedy  is  provided.  Bigeloiv  v.  The  Cambridge,  &c.  Turnpike,  7  J\[ass.  Rep, 
202,  Jeffrey  v.  The  Bine  Hill  Do.  10  Do.  3C8. 

Trespass  is  the  proper  form  of  action  for  recovering  the  treble  damages  given  by 
the  provincial  Statute  I  lieo.  2,  c.  4,  for  pulling  down  iin  uninhabited  house,  /'rf- 
cott  V.  Tvfts  et  al.  4  Muss.  Rett.  UC— Am.  Ed 


q^QQ  ACTIOXS  OX 

Part  II.  Statute  31  Eliz.  c.  3,  s.  3,  is  limited  to  two  years,  in  cases  where 
Statu't's  ^^^  forfeiture  is  given  wlolly  to  the  K.in^;  and  to  one  year, 
where  given  to  the  K.ing  and  the  informer  jomtlj  ;   in  all  cases 


(1)  Mau-'ham  ^^^ere  the  Statute  creating  the  ott'ence  has  nol  tixed  some  other 
q.  tam.t'.  period  of  limitation.  In  cases,  therefore,  where  it  does  not  ap- 
Peakr's'cas.  pear  on  the  face  of  the  record  itself,  that  the  suit  was  com- 
*^3.  menced  within  the  limited  time,  the  plaintiff  sliould  be  prepared 

(2) Harris 7).  with  the  writ,  which  he  may  produce  at  any  time  during  the 
Uooitoici       trial,  1 )  to  shew  the  exact  day  when  the  action  was  com.nenced. 

O  1  .  Ke|).  61  / .  -  *'  . 

SiNiiwaj  If  the  defendant  were  not  served  with  the  first  writ,  and  an  alias 

2  iT^s  &  Pul  ^^^  issued,  it  must  appear  that  the  first  writ  was  returned,  even 

158.  though  the  declaration  were  filed  within  a  year  after  the  issuing 

(3)Batfsr'.  of  the  first;  otherwise  the  second  is  no  regular  continuance  of 

j.i.kiMson,  it;(2)  but  if  the  first  writ  appear  to  have  been  returned,  and  the 

Rep.  Ci8.  return  duly  entered  on  record,  continuances  may  be  entered  at 

,.,„  any  time  afterwards. (3)     Where  only  one  writ  has  issued,  and 

(t)  Parsons  t'     ,   •'     ,      ,  .         .,-,,•,•  ,-  i       ■      • 

kins, 7Terni. the  declaration  is  filed  wuhin  a  year  afterwards,  it  is  not  ne- 
R'  p.  6.  cessary  to  shew  the  writ  returned,(4)  or  otherwise  connect  it 

(5)Huichins  with  the  declaration,  even  thuugh  the  writ  was  not  quitam.{5) 
^'tT''";'''  „.       The  evidence  on  the  part  of  tlie  defendant,  when  the  general 

■i  Taunt.  58d.  '  '  P 

issue  is  pleaded,  can  be  only  such  as  tends  to  contradict  that 
given  on  the  part  of  the  plaintiff,  or  to  shew  a  reasunaDle  ex- 
cuse.    In  actions   on  the  game  laws,  for  instance,  Courts  will 
not  try  the  right  to  a  manor:  and  if  the  person  who  appointed  the 
defendant  his  gamekeeper  has  only  a  colourable  title,  it  will  not 
(G)  Calcratt     be  permitted  to  charge  him  in  such  action  ;(6;  but  if  he  has  not 
T.  R-p.^68i.   any  ground  of  claim,  the  mere  circumstance  of  his  appointingthe 
defendant,  will  form  no  excuse  ;(7)  and  the  plaintiff,  in  answer 
5  T.  Rep.  I'j.to  a  mere  pretended  title,  may,  on  his  part,  prove  the  real  title, 
and  the  commencement  of  the  encroachment  under  which  the 
defendant  was  appointed,  for  the  purpose  of  shewing  that  it  was 
(8)Htintr.     wholly   without   colour   or  foundation., 8j     As   to   tiie   proof  of 
Andrews,^      qualification  by  estate,  if  the  defendant  prove  himself  to  be  ia 
possession   of  hind  of  the  value  of  lOU/.  per   annum,  tne  pre- 
sumption is,  that  he  is  entire  owner,  until  tlie  contrarv  be  prov- 
ed, by  shewing  that  he  only  rents  it,  or  that  it  is  affected   with 
(9)  Wetheiall  incumbrances  reducing  its   value  below  that  sum. (9)     A  claim 
|„|^""' *^" ''  made  bv  the  defendant  before  commissioners  of  income,  of  aa 
allowance  by  reason  of  charges  affecting  the  land,  is  sufficient 
Chllo'^'sT    evidence  of  its  not  being  of  greater  annual  value  than  tiiatstat- 
Rep.  2-20.       ed  by  the  defendant. (10)     If  the  defendant  admit  his  guilt,  but 
(li)Bre<Ion    niean  to  set   up  a  former  conviction,  he  must   |)lead  it  speci- 
■V.  Harman,    ally  nil  J  and  if  the  plaintiff  reply  nul  lid  record  to  the  plea  of 

2Stra.  701.  J  ><      ■>  r  r  J  f 


STATUTES.  q,Qy 

conviction,  it  makes  an  issue  in  law,  and  the  tlefendant  must  be  ch.  V.  s.  i. 
prenared  to  prove  it  to  the  Court,  as  in  other  cases  of  record  ;     ^"  •''""' 

»        •  r  ....  atalutfS. 

but  if  per  fraudem  be  replied,  this  will  be  tried  by  a  jury,  and  __________ 

the  onus  will  lie  on  the  plaiatiff'.(c) 


[e)  Thf  i-ecoi'd  "f  a  voluntary  eonfessioti  before  a  justice,  and  payment  of  the 
whole  penalty,  niav  be  pleaded  in  bar  to  an  action  qui  tain.  Hamilton  v.  JVilliams, 
1  Tyl.  Rep.  15.— A>i.  Ed. 


SECTION  II. 


On  remedial  Statutes. 


Actions  by  the  party  grieved,  on  a  Statute  made  for  his  pro-      *>ftct.  2. 
tection,  or  the  better  enfctrcing  his  rights,  are  not  considered  in     stam  '^ 


ites. 


the  light  of  penal  actions,  and  are  therefore  much  more  favour-  ______ 

ed  in  a  Court  of  Justice    They  are  not  within  the  Stat,  of  £'/i2.(i)  Vuie 
astotime.(l)  SL^'Sl. 

The  actions  founded  on  Statutes  of  this  description  are  very 
numerous.  I  shall,  however,  in  this  place,  only  notice  those 
again.st  a  tenant  who  holds  over  after  a  notice  to  quit;  and. 
against  a  hundred  for  recompense  to  the  party  injured  by  a  fe- 
lony ;  as  being  the  most  usual.  The  action  for  subtraction  of 
titiies  will  be  more  properly  treated  of  in  another  chapter; 
and  that  against  a  Sheriff  for  selling  without  p:iying  the  land- 
lord's rent,  when  we  come  to  treat  of  actions  against  that  of- 
ficer. 

1.  The  actions  for  additional  rent  are  given  by  the  Statutes  (^^'[""pfi'^c^p 
of  4  Geo.  2.  c.  28,  and  II    Geo.  2,  c     19.     The  former  of  these  louble  rent. 
Statutes  relates  to  notices  given   by  landlords,  the  other  to  no- 
tices given  by  tenants      In  the  first  case  tlie  Sta'ufe  gives  dou- 
ble the  yearly  value  against  the  tenant  who  holds  over;  in  the 
other,  double  rent  only  is  recoverable.     There  are  several  other 
differences  between  the  provisions  of  these  two  Acts  of  Parlia- 
ment.    The  double  of  the  yearly  value  given  l)y  the  first  can 
only  be  recovered  by  action  ;  whereas  the  double   rent  given  by  (2)  Wilkinson 
the  other  may  also  be  recovered  by  distress.    The  notice  by  the  ^i^^l^^^l^^ 
landlord  must  be  in  writing  ,'v2)  that  by  the  tenant   may  be  by 
paroLii)     In  actions  founded   on   the  Statute  4   Geo.  2,  where  ,^\^,'^"™""' 
notice  has  been  given  by  the  landlord,  the  plaintiff  must  prove  3  Bm-.  I6c;^ 
3N 


458  ACTIONS  OX 

Partir.     that  the  defendant  held  under  hiin,  by  shewing  the  taking,  or 
l-'^'ll"'i'(n?)r  P^y"^^"t  of  rent,  Iiaving  given  him  notice  to  produce  his  receipts; 
double  rent,  and  to  entitle  himself  to  double  the  yearly  value  from  the  expi- 
ration  of  the  term,  he  must  prove  that  a  notice  signed  by  him- 
self, or  some  other  person  duly  authorised,  was  given  to  the  de- 
fendant, previous  to  the   expiration  of  the  term,  to  quit  at  the 
7'  De'bv"^     ^"^'  of  it.(l)     But  if  the  tenant  having  continued  to  the  end  of 
2  Black.  1075.  the  term,  without  any  notice,  afterwards  holdover,  the  landlord 
may  still,  provided  he  has  not  done  any  act  to  acknowledge  the 
continuation  of  the  tenancy,  give  notice  to  the  tenant  to  deliver 
SKk?s  s^      up  the  possession,  or  pay  double  the  yearly  value,(2)  in  which 
Eabt,.'358.       case  the  tenant  will  be  liable  to  double  value  from  the  time  of 
the  notice.     By  this  Act,  however,  the  landlord  waves  his  right 
to  any  rent  whatever  during  the  time  which  the  defendant  has 
I  held  over  previous  to  the  notice,  for  he  cannot  consider  the  de- 
fendant as  a  legal  tenant  during  any  part  of  the  time  after  the 
(j)l)iu.         pj^j  qJ-  ^i^g  term,  and  a  tortious  holder  afterwards. (3)     The  de- 
(4)  Snuisby    fendant  being  considered  by  this  action  as  a  tortious  holder,(4) 
'OEasr'sfo     ^"^  ^^^  ^  tenant  holding  under  an  increased  rent,  it  follows  that 
no  objection  can  be  made  to  the  action  on  an  account  of  the 
plaintiff' having  recovered  in  an  ejectment,  on  a  demise  laid  pre- 
vious to  the  time  of  the  holding  over.     In  the  case  of  a  tenancy 
from  year  to  year,  it  must  be  proved  that  six  months  notice  was 
given  to  quit  at  the  end  of  the  year.     As  to  what  persons  shall 
be  considered  as  authorised  to  give  such  notice,  it  has  been  held 
that  a  receiver,  appointed  by  the  Court  of  Chancery,  may  give 
the  notice  in  his  own  name,  and  bring  the  action  in  the  name  of 
^^)J'^,j|.'^'"g°"tho  person  who  has  the  legal  estate  ;(5)  and  that  if  any  common 
Burr.  2Gy4.    agent  give  the  notice,  his  principal  may  confirm  it  by  a  subse- 
(6)  Goodtiiie  quent  recognition,  though  he  had  given  no  previous  orders  on  the 
dem  K'ngr.  subject. (6)     And  tenant  in  common  may  alone  give  notice  to 
3B.  8cA.689.fl"it  ms  moiety,  and  maintain  an  action  for  double  the  yearly 
,  ^  „  value  therof  :(7)  but  if  there  are  several  joint-tenants,  all  ought 
Derby,'2 Blac. to  join  m  giving  the  notice. (8j      ihe   plaindii  must  then  prove 
1075.  the  yeaily  value  of  the  premises,  of  which  the  rent  actually  re- 

(8)  Risbt       served  is  in  ordinary  cases  considered  as  the  measure  ;  and  also 
dem.  F'sher   ^j^g  ivcae  dunns;  which  the  defendant  held  over  after  the  day  on 

t^.  Cuttit'II 

5  East,  491.    which  he  ought  to  have  quitted.     He  is  not  obliged  to  prove  any 
V^ide  post.       other  demand  of  possession  previous  to  the  bringing  the  action, 

(9)  Wilkinson  besides  the  notice  ;  nor  need  he  prove  that  any  person  attended 
r.  Coiirv,  ui"^t||^e  appointed  time  to  receive  the  possession  from  the  defend- 

ant.f9) 

The  action  being  founded  on  the  wilful  misconduct  of  the  de- 


STATUTES.  ^Fyg 

fendant,  cannot  be  maintained  where  lie  has  held  over  under  a  Ch.  v.  s.  2. 
fair  claim  of  title,  thoiish  such  claim  has  been  unsuccessful;  and     Action  by 

.,  _  ,  J  r       t-r  •   t  /- I         •  1        liindlord  for 

therefore  where  a  tenant  tor  lite,  with  a  power  or  leasing  at  the  doubi.-  rent. 

best  rent,  demised  to  a  person  already  in  possession,  in  cnnsi-  — ^ 

deration  of  a  surrender  of  his  lease,  and  the  remainder-man  af- 
terwards disputed  the  validity  of  the  lease  on  the  ground  of  the 
best  rent  not  being  reserved,  the  jury  finding  that  there  was  no 
fraud  or  collusion  by  the  defendant,(l)  the  Court  held  he  could  (*)^'\''!^'''' 
not  be  charged  with  double  the  yearly  value  for  the  time  during  Ksi».Caa.  203. 
which  he  held  over,  while  defending  the  ejectment  which  was 
brought  to  try  the  validity  of  the  lease. 

1.  The  first  Statute  which  gave  an  action  against  a  hundred,  A'tinn  on  the 
was  that  of  Winchester  9,d.  13  Udw.  I,  commonly  called  the  Sta-Hueand  Cry. 
tute  of  Hue  and  Cry.     By  this  Statute  a  party  robbed  might, 
in  case  the  hundred  did  not  apprehend  the  felon  within  forty 
days,  recover  the  amoant  of  his  loss  from  them.     By  Stat.  8, 
Geo.  2,  c.  16,  the  time  is  extended  to  forty  days  after  notice  in 
the  gazette,  as  thereby  required  ;  and  it  has  been  holden  that 
where  the  declaration  averred  that  the  felon  had  not  been  yet 
taken,  the  apprehension  of  any  one  of  the  felons  before  the  com-zg^Baskpr- 
mencement  of  the  action  was  a  good  defence. (2)     Various  pro-viii   t-.  Huml. 
visions  have  been  added  from  time  to  time  by  several  later  Sta-j'yjif.  11.^^' 
tutes ;  and  as  the  law  now  stands,  the  plaintiff,  to  sustain  his  ^       ,       , 
action,  must  prove  the  following  facts  :  Oaie,7Co.  6. 

1st.  That  he  was  robbed  in  the  day-time  jfS)  that  is,  when  there , .,  ^ 

.  '■*)  C"oper  V. 

was  day  light  enough  to  see  a  man's  face.     It  is  said  in  some  of 'i'  ..ii.  d  of 

the  cases,  that  the  robbery  must  be  in  a  highway;  but  this  does^f|j'\j"'f'"' 

not  appear  to  be  necessary,(4)  so  as  it  is  in  an  open  pUice,  and  not  826. 

in  a  dwelling-house.C5) .   That  the  place  where  the  robbery  was  (^5^Send•^l's 

committed  is  within  the  hundred  sued  ;  though  a  variance  from  <-^»sr,  7  Co. 

the  parish  named  in  the  declaration  is  not  ina'ierial.(6)     It  must  '^' 

also  be  proved,  either  that  tlie  robbery  was  on  a  working  dav ;('"')  Shrews- 

1  -n  r.  J  ,1  i     •  1.'  ■  .1  If'',        iillrv  7'.  Hllt<(l. 

or  that,  11   on  ounday,  the  plaintin  was  going  to  church  ;  tor  byni  Asiiion, 
the  Statute  22  Car.  2,  c.  7,  a  man  travelling  on  a  Sunday  is  taken  ^  ^■"^'"'-  *'^'^- 
out  of  the  protection  of  the  Act. (7)  {7)Tas!i- 

2d.  That  the  plaintiff,  as  soon  after  the  robbery  as  he  conve-u'*',  ^;„r 

V  J  ~  Hicaured  ot 

niently  could,  gave  notice  to  some  of  the  inhabitants  of  some  diu.onton, 
town,  village,  or  hamlet,  near  to  the  place  where  the  robbery 
was  committed. (8)     It  is  not  necessary  that   the  mttice  shoild  s)  Tiequ'ied 
have  been  given  to  the  inhabitants  of  the  nearest  village  ;(9~;  butiVij^  ,.  13^ 
it  will  bo  sufficient  if  it  is  given  at  the  next  village  lying  in  the  !'• 
great  road,  though  there  is  one  nearer,  lying  out  of  it.     Neither  ('j)  Noy,  52. 


4.00  {  ACTIONS  ON 

Part.  IT.     need  the  village  at  which  the  notice  is  given   be  in  the  same 
Aciinn  onthr,      ^^      ,       county,(l) 

Hut  «nrt  Cry.      3(1.  That,  with  as   much   convenient  speed  as  might  be  after 
■  the  robbery,  he  also  gave  notice  of  it  to  one   of  the  constables 

(l)Tuuerr'.  of  the  hundred,  or  to  some  constable,  borsholder,  headborough, 
l^iioiiim        or  tithing-man  of  some  town,  parish,  village,  hamlet,  or  tithing, 
Cio.Car.  41.  ijpj^,.  uf,|_Q  ihe  place  wherein  the   robbery  happened  ;  or  that  he 
left  notice  in  writing  of  the  robbery  at  the  house  of  such  con- 
stable, &c.  describing  in  such  notice  so  given  or  left,  as  far  as 
the  nature  and  circumstances  of  the  case  wuld  admit,  the  felon 

(2)  Require  I  Qp  felons,  and  the  time  and  place  of  the  robbery.(2)  The  plain- 
ed 16,  s.  7.       tift' was  robbed  soon    after  six  in  the  morning,  about  two  miles 

and  a  half  from  Northampton,  and  the  highvvaynmn,  to  prevent 
his  pursuit,  cut  his  bridle  and  stirrups,  threw  them  into  a  ditch, 
and  turned  his  horse  loose  ;  the  plaintiff  recovered  them,  re- 
mounted his  horse,  and  rode  through  a  village  without  giving 
any  notice  to  the  inhabitants;  but  meeting  three  men  on  his 
return  to  Norihaiiipton,  he  informed  them  of  the  robbery,  and 
arrived  at  Northampton  at  seven  o'clock.  He  gave  notice  to  an 
innkeeper  there,  and  from  thence  went  to  a  place  three  miles 

(3)  Ball  ■».  off",  where  the  high  constable  resided,  and  between  eidit  and 
Wyiiiersio,  nine  gave  notice  to  him.  This  was  held  to  be  good  notice,  for 
Bui"  v'p  "  ^^'^  '^'S*^  con.stable  was  the  most  proper  person  to  apply  to,  and 
18.'),S.C.  it  was  not  recjuired  that  he  should  go  to  the  next  constable.'S^ 
R.qii'ed  h\  4th.  The  plaintiff"  must  next  prove,  that,  within  twenty  days 
same  biai.      ^^^^  after  tiie  robbery,  he  caused  a  notice   to  be  given  in   the 

London  Gazette,  describing,  as  far  as  the  nature  and  circum- 
stances of  the  case  would  admit,  the  felon  or  felons,  and  the 
time  and  place  of  the  robbery,  together  with  the  goods  and  ef- 
fects whereof  he  was  robbed.  To  prove  this,  the  gazette  itself 
should  be  produced  ;  and  the  notice  should  contain  every  mate- 
rial description  of  the  robber.  In  one  case,  where  the  highway- 
man had  red  eye-brows,  and  that  circumstance  was  omitted  in 
the  gazette,  the  omission  of  so  distinguishing  a  mark  was  held 
(4)  Whit-  to  be  fatal. ,4)  Tiie  notice  must  also  contain  a  full  and  true 
^^°'||,,f'(^i."",l description  of  the  eff"ects  whereof  the  party  was  robbed,  as  far 
shoe,  2  Wils.  as  they  can  possibly  be  ascertained;  as  if  a  man  be  robbed  of 
bank-notes,  of  which  he  knows  the  dates  and  numbers,  or  could 
by  infjuiry  or  diligent  search  inform  himself  of  those  particu- 
lars, he  ought  to  particularise  them  all ;  and  in  a  case  where  a  man 
being  robbed  of  his  watch,  money,  and  several  bank-notes,  the 
numbers  of  some  of  which  being  known  to  him,  and  the  others 
not,  he  neglected  to  give  a  further  description  of  any  than  the 


STATUTES,  ^gj^ 

value,  the  Court  of  Common  Pleas  were  equally  divided  on  tlie  Ch.  v.  s,  2, 
question  whether  he  could  recover  any  part  of  his  loss.  Willes  ^^[""utTot^^ 
Ch.  J,  and  Burney  J.  held  he  could  not ;  but  Abney  and  Birch  J.  Hu«  ami  c 


were  of  opinion,  that  he  was   entitled    to   recover  the  value  of    — 

those  whereof  he  did  not  know  the  numbers  and  dates,  and  also  v')  ^^''"'"'■r 
his  watch  and  money,  which  were  sufficiently  described.(l)  Sunning, 

5th.  It  is  required  by  the  Statute  of  Eliz.  that  the  party  robbed  !^'","'j^'  **''■ 
shall,  within  twenty  days  next  before  the  commencement  of  the  ;s6,  S.  C. 
action,  be  examined  upon  oath  before  some  justice  of  the  peace  27  Kiiz. 
of  the  county  wherein   the  robbery  was  committed,   inhabiting '^* '"'•*•  " 
within  the  hundred  where  the  robbery  was  committed,  or  near 
the  same,  whether  he  knows  the  robbers,  or  any  of  them  ;  and  if 
upon  such  examination  it  be  confessed,  that  he  knows  the  rob- 
bers, or  any  of  them,  that  then  he  should  enter  into  a  bond  by 
recognisance  before  the  same  justice,  effectually  to   prosecute 
the  robbers  known.     To  prove  this  fact  the  plaintiff  should  pro-..,vp^   p, 
duce  the  affidavit   made  before  the  justice;  and    it   has   beenkerCh  J. at 
holden,  that  if  the  person  who  took  it  be  proved  to  act  as  a  jus-  ,7'i'.]  g^'i 
tice,  and  it  was  delivered  by  his  clerk  to  the  person  producing  ^-  ^  i^^. 
it,  that  is  sufficient, without  proving;  the  justice's  hand  writin2:;'2'  ',')  H^l'e''^'- 
and  if  the  person  before  whom  it  is  sworn  be  a  magistrate,  it  is  ULiimrst, 
sufficient,  though  he  were  out  of  the  county  at  the  time  of  ad- ;T"y^}^;.''"/I^*' 
ministering  the  oath. (3)     If  no  examination  were  taken  in  wri- -^n,  s>- C. 
ting,  the  magistrate  may  be  called  as  a  witness,  and  depose  to(*^ '^'^'""^ 

,^  ,     ,  r    ,  I      rr.  ■       •         ^  i  i  •  .  ^'    Hundred of 

the  substance  or  the  usual  atndavit  ;(4  )and,as  to  tiie  residence  of,}  :.c<ifiiive, 
the  magistrate,  Abney  J.  held,  that  where  the  affidavit  was  taken  ^\  ^"  ^'  '^^' 
before  one  who   lived   twenty  miles   from  the  place  where  tie  kuikL  of  ^ 
robbery  was  committed,  and    many  justices  lived   nearer,  yet  it*^i',",^''°"' 

jy.    .  ,  II-  •       ji  •  Ir44    Bui, 

was  sutticient,  as  the  act  was  only  directory  in  this  respect,(5)  x.  p.  186. 
This  oath  must  be  taken  by  the  person  actually  robbed,  either  l^)  Giem's 
master  or  servant  ;;6)  and  if  two  servants,  or  the  servant  and  a^hz   14'^" 
stranger,  to  whom  he  delivered  part  of  the  money,  are  robbed  at  (7)  Aalnomb 
the  same  time,  both  should  take  the  oath,  in  order  to  enable  the  v  ^.""'*  °^ 
master  to  maintain  the  action  for  the  whole  ;  for  if  only  one  be  '  Show.  94. 
examined,  the  master  can  only  recover  so    much   as  was   taken  ^*q  ^    '     "'' 
from  him  ;(7)  but  if  the  servant  bring  the  action  in  his  own  name,(S)  Ashc-omb 
on  a  robberv  so  committed  on  himself  and    another  person,  to^^/'""*^' P*^ 
whom  he  had  delivered   part   of  the    money,  it  it  su^Jicieiit  forOanh.  145. 
him  alone  to  have  made  the  affidavit,  because  the  whole  money  (^)  J"»''s^'- 

.       ,      .      ,  .  •  I  .  •       •    Huiul.  of 

is  constructively  in  his  possession  ;(8)  and  on  the  same  princi-  ii,,.,ni(;y,  and 
pie,  where  master  and  servant  are  travellintj;  tog-etiier,  and  the '^!';'^- '.J"'"'- 
master  having  delivered  part  of  his  money  to  the  servant,  theyciiod  Carth. 
are  both  robbed,  the  master  alone  may  make  the  affidavit.(9)  ^^'^  ""'•  ''• 


162  ACTIONS  ON 

Part  II.  In  order  to  make  out  the  fact,  that  the  oath  was  so  takeu 

Action  on  (lie  „  •ii  •      ^  .       i  ,   ,     r-  .1  ,-      , 

Statute nf    ^^•t'l'"  twentv  (lays  next  betore  the  commencement  of  the  ac- 
Hue  and  Cry.  tion,  the  original  writ  shoulti  also  be  produced. 

Lastly,  it  must  be   proved,  that  before  the  commencement  of 
^G.'t'c.ie    *'^^  action,  the  plaintiff  went  before  either  the  chief  clerk  or  se- 
condary ;  the   iilazer  of  the  county  wherein   the   robbery  was 
committed  ;  the  clerk  of  the  pleas  of  the  Court  wherein  the 
action   is  commenced,  or  their  respective  deputies ;  or  before 
the  Sheriff  of  the  county  wherein  the  robbery  was  committed; 
and  entered  into  a  bond,  to  the  high  constable  of  the  hundred, 
in  the  penal  sum  of  100/.  with  two  sureties,  approved  of  bv  those 
officers  respectively,  conditioned   for  payment  of  the  costs,  in 
case  of  his  failure  in  the  action.     This  bond  must  be  produced, 
and  one  of  the  subscribing  witnesses  called  to  prove  it.     The 
Statute  of  27  Eliz.  having  required   that   the   action  should  be 
Prices  Hun- ^^"^•^^'^^^'^  witliin  a  year,  the  production  of  the  writ  \s>  in  some 
dred  of  cases  necessary  to  prove  this  fact  also  ;  and  if  the  writ  be  tested 

1  p  w"437   within  that  time,  that  is  sufficient,  though  it  has  not  passed  the 
great  seal  till  afterwards. 

\nte   "^1  .  ' 

'*"'  ■  As  to  the  circumstances  of  the  robbery,  we  have  before  had 

occasion  to  observe,  that  the  plaintiff  liimself  may,  in  some  cases, 
22G.  2,c.  24.  |jg  ^  witness  ;  but  by  a  late  Act  of  Parliament,  made  in  conse- 
quence of  the  suspicious  circumstances  attending  the  case  of 
Chandler  v.  The  Hundred  of  Sunning,  before  cited,  it  is  enacted 
that  no  person  shall  recover  more  than  tiie  value  of  200/.  unless 
the  person  or  persons  robbed  shall  at  the  time  of  the  robbery 
be  together  in  company,  and  be  in  number  two  at  the  least,  to 
attest  the  truth  of  the  robbery. 
Actions  on  The  Riot  Act  (1  Geo.  1,  st.  2,  c.  5,)  gives  an  action  against 

any  two  inhabitants  of  the  hundred  to  recover  the  value  of  cer- 
tain buildings  injured  by  rioters.     Many  cases  had  arisen  on 
this  Statute,  which  not  only  confined  the  operation  of  it  within 
very  narrow  bounds,  but  also  made  the  construction  uncertain 
by  reason  of  the  degree  of  criiiiinality  in  the  rioters  being  a  mat- 
ter of  consideration  with  the  jury.     Thus  it  was  held,  that  un- 
less the  beginning  to  demolish  or  pulling  down  the  house  amount- 
(i)Reidrj.     ed  to  a  felony  in  the  rioters,  the  hundred  was  not  liable  ;(1)  and 
Clarke,  7^^^   as  that  must  depend  on  their  intention,   this  was  always  a  dis- 
Buiio.igiis      puted  question.     To  remedy  these  defects  the  Stat.  57  Geo.  S. 
lb  Yi4^'"^'     c.  19,  was  passed,  whereby  it  was  enacted,  (sec.  38th,)  That  "  in 
every  case  where  any  house,  shop,  or  other  building  whatever, 
or  any  part  thereof,  sliall  be  destroyed,  or  shall  be  in  any  man- 
ner damaged  or  injured,  or  where  any  fixtures  thereto  attached. 


STATUTES.  .J;63 

or  any  furniture,  goods  or  commodities  whatsoever,  which  shall  Ch.  V.  s.  2. 
be  therein,  shall  be  destroyed,  taken   away  or  damaged,  by  the ^'g'|°J'_^ <||'^'^'>*= 
act  or  acts  of  any  riotous  or  tumultuous  assembly  of  persons,  or  Hue  and  Cry. 
by  the  act  or  acts  of  any  person  or  persons  engaged  in  or  making  ..■■ 

part  of  such  riotous  or  tumultuous  assembly,  the  inhabitants  of 
the  city  or  town  in  which  such  house,  shop  or  building  shall  be 
situate,  if  such  city  or  town  be  a  county  of  itself,  or  is  not  within 
any  hundred,  or  otherwise  the  inhabitants  of  the  hundred  in 
which  such  damage  shall  be  done,  shall  be  liable  to  yield  full 
compensation  in  damages  to  the  person  or  persons  injured  or 
damnified  by  such  destruction,  taking  away  or  damage ;  and 
such  damages  may  be  demanded,  sued  for,  and  recovered,  by 
the  same  means  and  under  the  same  provisions  as  are  provided, 
in  and  by  an  Act  passed  in  the  first  year  of  King  George  the 
First,  intituled,  *  An  Act  for  preventing  tumults  and  riotous 
assemblies,  and  for  the  speedy  and  effectually  punishing  the 
rioters,'  with  respect  to  persons  injured  and  damnified  by  the 
demolishing  or  pulling  down  any  dwelling-house,  by  persons 
unlawfully,  riotously  and  tumultuously  assembled:"  so  that  now 
all  kinds  of  buildings  are  within  the  proytection  of  the  law,  and 
the  sufferer  is  entitled  to  compensation  whether  the  acts  of  the 
rioters  amount  to  a  felony  or  only  a  misdemeanor.  The  evi- 
dence of  course  will  be  merely  the  property  of  the  plaintiff"; 
the  destruction  of  it  by  a  riotous  mob ;  and  the  means  by  which 
such  destruction  was  effected.  In  regard  to  the  extent  of  com- 
pensation, it  is  confined  to  the  injury  arising  at  the  same  time 
as  the  destruction  of  the  building;  and  if  while  doing  that,  the 
rioters  destroy  goods  and  furniture  in  the  house,(l)  or  damage [^J^i^^'^Jj'^i 
the  garden  adjoining,(2)  the  hundred  is  liable  to  the  extent  of  699. 
such  damage.  By  the  Statute  of  Geo.  1,  the  hundred  was  not/g)  wiimot 
liable  for  the  value  of  property  stolen  or  taken  away  ;(3)  but  this  '^•-  Horton, 
is  also  remedied  by  the  express  words  of  the  other  Act  of  Par-  ^ '  *  ' 
liament.     The  Black  Act  (9  Geo.  1,  c.  22,)  gives  a  similar  ac- (3)  l}^-''kw'i'» 

'  '■'  's  _    V.  Wood, 

tion  for  damage  to  the  amount  of  200/.*  done  by  persons  mali- 1  b.  &  A. 

487. 

•  In  a  case  arising  on  this  Statute,  where  a  barn  belonging  to  >•?.  In  the  occupation 
ofiJ.  had  been  burnt,  and  corn  belonging  to  Ji.  thert-in  also  destroyed,  Mr.  B. 
Tho.mpsos  held  that  both  landlord  and  ttiiaiU  were  entitled  to  >  ecompense  to  the 
amoueit  of  200/.  each  ;  and  that  ;in  oath  made  by  the  sei-vant  of  tht-  t'^'iaiit  whs  suffi- 
cient for  both.  Jldclerleyv.  Himdred  of  OJfloxv  JVorth,  Slaffurd  Spring  .issizes, 
1802.  But  in  a  case  arising  on  the  Slatuf  52  G.  .3,  c.  ir^O.  where  an  acii'm  was 
brought  by  several  partners  for  an  injury  dme  U>  their  buildings,  and  all  the  parties 
were  present  at  the  time,  tht-  Court  of  K.  B.  held,  that  all  must  join  in  the  affidavit. 
JSleaham  r.  ArmstvoJig,  I  B.iJ  Ji.  140.     And  in  another  case,  arising  on  the  Statute 


4ffi4?  ACTIONS  ON 

Pari.  IT.  ciously  killing  or  maiming  cattle,  cutting  down  trees,  setting 
^siau.t?oi''*'fi''^  to  houses,  &c.  The  8  Geo.  2,  c.  20,  for  the  destruction  of 
Hue  and  Ci\.  turnpikes  and  works  in   navigable  rivers  ;  10  Geo.  2,  c.  32,  for 

hop-binds   maliciously  cut  ;  and   the   Act   11  Geo.  2,  c.  22,  for 

corn  destroyed  to  prevent  cxportations :  but  as  the  evidence  is 
not  very  complex  in  any  of  these  cases,  it  is  unnecessary  to  say 
more  respecting  them. 

9  Geo.  1,  it  was  holden  lliat  the  affidavit  must  state,  wht-re  the  injury  was  done  by 
sev.  ral,  that  the  deponent  does  not  know  them,  "or  either  of  them."  Thurtelw 
Hundred  ofMidford,  3  East,  400. 


(  465  ) 


CHAP.  vr. 


OF  THE  EVIDENCE  IN  ACTIONS  UPON  THE   CASE. 

Under  this  head  might  have  been  included  the  action  of  as-     Qg|,g,.^j 
sumpsit ;  but  having  before  had   occasion  to  mention,  at  consi-  observations. 
derable  length,  the  evidence  required  in  that  form  of  action,  1  • 

shall  confine  the  present  chapter  to  those  actions  which  are 
founded  on  torts ;  and  which  are  generally  understood  to  be  in- 
tended, when  an  action  is  said  to  be  on  the  case.{a) 

Some  of  these  are  founded  in  malice,  as  actions  for  slander 
and  malicious  prosecutions  ;  others  in  negligence,  as  where  a 
man,  having  a  right  to  use  his  own  property,  exercises  his  right 
90  carelessly  as  to  injure  his  neighbour  ;  and  a  third  class,  on 
the  direct  invasion  of  incorporeal  property. 

In  all  these  cases,  the  plaintiff  is  obliged  to  state  the  whole 
substance  of  his  case  in  the  declaration  ;  and  as  he  can  only  re- 
cover on  the  justice  and  conscience  of  it,  whatever  will  in  equity 


(«)  The  owner  of  land,  having  for  a  valuable  cr>r>si(Jpration,  given  license  to  ano- 
ther by  parol,  to  build  a  bridge  on  his  land,  an  action  of  tiv'pnss  de  bonis  anporlatis 
will  lie  against  hira  for  taking  away  the  bridge,  withfuii  the  consent  of  hi'U  who 
erected  it.  Ricker  et  al.  v.  ICeUy  et  ah  1  Greenl.  Hep.  1 17. 

But  to  support  this  action,  the  plaintiff  must  have  thi^  actual  or  constructive  pos- 
session at  the  time.  Putnam  v.  fVyley,  8  Johns   Rep.  .S3". 

An  action  of  trespass  will  not  lie  foi  a  co;ise(jueiitiMl  ii  jury,  but  it  must  be  an  ac- 
tion on  the  case.  Adams  et  al.  v.  Hemmervway,  1  Mass   Rep.  145. 

Trespass  v?  e«  arnH*  lies  where  the  act  done  is  in  itself  an  immediate  iiijory  ; 
■v»here  the  act  is  not  immediately  iijni  ious,  but  only  by  consequence  and  collaterally, 
thi  re  trespass  TO  rf  ar-ww's  will  not  lie,  but  an  anion  on  the  case  for  th.'  daia^ges 
consequent  on  such  act.  Taylor  v,  Rainbuw,  2  H.  &  J\funf.  Rep.  423.  Barnes  v. 
Hurd,'\\Jytass.  Rep. 57.  Cole  v.  Fislier,ibid.  'i37.  Starr  etal.  v.  Jackson,  ibid.  519. 

A"  action  on  the  case  will  lie  iti  favour  of  one  unlawfully  deprived  of  a  btiieficial 
office,  itgainst  the  person  who  has  d^prjvd  \\\\\\  of  u.  Fulghamy.  Lightfoot,\. 
Call's  Rep.  "iS a     Go>de?iv.  fiutts.  Penning.  Rep.  oSi. 

Eith'i- trespass  or  case  lies  for  seducing  the  plaintiff's  daughter.  Parker  \.  El- 
liott, 1  Gilmer's  Rep. S3. 

When  an  aetion  should  be  trespass,  and  when  case,  \ide  Cotteral\.  Cummins 
et  al.  6  Serg.  &  R.  Rep.  343 

Tresp!),s,  sn'l  not  case,  Ij-  s  against  a  pl-iintiff  who  serves  an  execution  after  it  has 
expiretl.    Vail  v,  Lewis  et  al.  \  Johns.  Rep   450 

A  •:itlHr  ma  j maint  lin  an  stction  .m  th'  ct.'Je,  for  the  seduction  of  his  daughter. 
Hornkeith\.  Harr,  8  Serg.  ig  R.  Rep.  36,    Ream  v.  Rank,  3  Do.  215.— Am.  Ed. 

30 


466  ACTIONS  UPON  THE  CASE. 

Pari  11.  and  conscience,  according  to  the  circumstances  of  the  case,  bar 
obser'Jabons.  ^he  plaintift''s  recovery,  maybe  given  in  evidence  by  the  defend- 
■  ant,  on  the  general  isHue,{V)  which  is  merely  that  he  is  not  guilty 

(i)Vit)<  3  of  the  premises  wherewith  he  is  charged.  But  in  cases  where 
Burr.  1353.  ^jjg  party  justifies  an  act  which  is  prima  facie  illegal,  as  the 
slander  of  another:  or  where  an  injury  has  in  fact  been  com- 
mitted, and  there  is  no  defence,  but  that  of  the  remedy  being 
barred  by  the  Statute  of  Limitations*  the  defence  must  be  spe- 
cially pleaded. 

On  the  plea  of  the  general  isstie,  the  plaintiff  must  be  prepared 
with  evidence  of  all  the  facts  stated  in  his  declaration;  and  if 
the  defendant  plead  the  Statute  of  Limitations,  the  plaintiff 
must  prove  that  the  original  cause  of  action  accrued  within  the 
time  of  Limitation,  for  this  action  cannot  be  revived  as  in  the 
case  of  assumpsit  or  debt,  founded  on  an  executed  consideration. 


SECTION  L 

Actions  founded  in  malice  or  fraud. 

Sect.  1.         In  slander,  the  plaintiff  must  prove  all  such  material  allega- 

Siai..ier.     ^JQ^jg^  contained  in  his  declaration,  as  are   not  implied  by  the 

'  ~  words  themselves. (6)     As  where  words  spoken  of  a  physician 


What  is  Slander. 

{b)  The  rule  in  slander  seems  to  be,  that  where  a  charge,  if  true,  will  subject 
the  party  charged  to  an  indictmenl  for  a  crime,  involving  moral  turpitude,  or  subject 
him  to  an  ignominious  punishmeni,  then  the  words  are  in  themselves  aciionat>le, 
Brookerv.  Coffin,  5  Johni.  Rep.  188.  Shaffers.  Kintzer,  1  Binn.  Rep.  537. 
J\P  Clurg  V.  Ross,  5  Do.  218  Jindres  ft  MX.  v.  Koppenlwafer ,  3  Serg.  SJ  R.  Rep. 
255    Elliot  V.  Alsberry,  '2  Bibb's  Rep.  473. 

The  words,  s/ie  stvore  a  false  oath,  and  I  can  prove  it,  are  not  actionable.  Packer 
V.  Spangler  et  ux.  2  Binn.  Rep.  60. 

To  say  of  a  man,  that  he  was  a;j  United  Irishman,  and  got  the  money  of  the  United 
Itishmen  in  his  hands,  and  ran  axvuy  -iviih  it,  is  not  actionable,  because  it  charges  a 
breach  of  trust  rather  than  a  felony.  J\V  Clurg  v.  Ross,  5  Binn.  Rep.  218. 

To  say  of  ariother,  yon  got  to  bed  with  Sarah  J\f.  is  actionable.  Walton  v.  Single- 
ton,! Serg.  &  R.  Rep  449. 

So,  he  is  such  a  -whoring  felloiv ,  that  it  is  luith  difficidty  he  can  keep  a  girl  about 
the  house,  being  continually  a  riding  them.  ibid. 

So,  Ae  (the  plaintiff  meaning)  has  committed  fornication,  notwithstanding  the 
7iarr.  avers  that  the  plaintitf  wr.s,  at  the  time  of  uttering  the  words,  a  married  man- 
ibid. 


ACTIONS  UPON  THE  CASE. 


467 


charge  him  with  being  a  quack,  and  the  plaintiff  alleges  that  he  ch.  VI.  s.  i 
had  taken  the  degree  of  Doctor  of  Physic,  it  will  be  incumbent  Slamler. 
on  him  to  give  regular  evidence  of  such  degree.(l)     But  where 


(1 )  Moisi-s  V. 
— Tho'  ifm, 

To  say  of  a  man,  he  stole  a  doff,  is  not  aclionable.  Findlay  v.  Bear,  S  Do.  571.      ^  ^ '  ^'^V-  303. 
The  words  ^07i  have  sworn  to   a  lie,A<e  not  in  themselves  aclionable;  but  if 

taverreil  to  have  been  spnken  of  ihe  plainliffin  a  cause,  an<l  concerning  the  trial,  and 
the  evidencf  tjiven  h)  the  plaintiff,  the  count  will  contain  a  sufficient  causi;  of  action. 
Crookshank  v.  Gray,  2U  Johns.  Hep.  344. 

To  charge  one  with  sivindling,  is  not  aclionable;  for  swiwJfer,  means  no  more 
than  cheat,  and  to  charge  one  with  being  a  cheat,  has  alw«ys  been  hulden  not  to  be 
actionable.  Steveiison  v.  Hayde7i,  2  JMass.  Refi.  406. 

To  say  of  a  drover,  whose  business  is  to  purchase  cattle,  drive  them  to  market, 
and  sell  them,  that  he  is  a  bankrupt,  is  actionable  without  special  damage  being 
shewn.  Lewis  v.  Hawley,  2  Duy''s  Rep.  495. 

'1  o  say  of  the  plaintiff,  '^  squire  Oakley  is  a  damned  rogue,"  is  not  actionable,  the 
words  not  being  said  of  him  in  his  official  capacity.  Oakley  v.  Farrington,  1  Johns. 
Cas.  129. 

Woids  spoken  of  a  person  in  relation  to  his  office  of  Sheriff,  and  amounting  to  a 
chargf  of  mal  practice,  are  aclionable.  Dole  v.  Van  Rensselaer,  ibid.  330.  Dodds 
V.  Henry,  9  Mass.  Rep  2G2. 

To  say,  that  ihe  plaintiff  isybj'swoni,  is  not  actionable,  aliter,  that  he  \%  perjured, 
Hopkins  V.  Beedle,  I  Cames'  Rep.  347. 

So  to  say  to  the  plaintiff  "  he  is  peijured,"  will  be  actionable.  Green  v.  L,ong, 
2  Caines'  Rep.  91. 

To  say  "  you  swore  to  a  lie  for  ivhich  you  noxv  stand  indicCed,'"  is  actionable,  Fel- 
tons.  Ward,  3  Caines''  Rep.  73. 

To  say  of  a  candidate  for  an  assembly,  that  "  he  has  been  seen  drunk  and  asleep 
in  ihe  assembly  room,  and  is  unfit  to  be  a  member,''''  is  not  actionable.  Gilbert  v. 
Field,  ibid.  529. 

To  say  to  the  plaintiff  "^e  has  sworn  falsely,"  or  "he  has  taken  a  fake  oath 
against  me  in  Squire  Jarneson^s  Court,"  or  "  he  has  falsely  and  maliciously  charged 
»n  me  the  crime  of  perjury,"  will  not  be  actionable.  Ward  v.  Clark,  2  Johns. 
Rep.  10. 

It  is  good  after  verdict.  jSPiven  v.  Munn,  13  Johns.  Rep.  48.  Et  vide  Chapman 
V.  Smith,  13  Do.  78. 

The  words,  you  sivore falsely  at  the  trial,  are  actionable  in  themselves,  as  neces- 
sarily importing  a  charge  of  perjury.  Fowle  v.  Robbins,  12  JUass.  Rep.  498. 

Perjury  may  be  assigned  in  an  oath  erroneously  liken,  especially  whiK  the  pro- 
ceedings remain  unreversed.    Va?i  Steenbergh  v.  Kortz,  10  Johns.  Rep.  167. 

To  say  '■'she -was  hired  to  stuear  a  child  on  me,'' i^c.  is  not  actionable  without 
special  damage  being  laid  ;  words  to  be  actionable  must  subject  the  party  charged 
to  !  u  indiciment  for  a  crime  involving  moral  turpiiuile.  or  subject  him  to  au  infa- 
mous punishment.  Brookery.  Coffin,  5  Johns.  Rep.  188. 

Charging  a  single  woman  with  being  -with  child  -with  a  bastard,  is  actionable, 
Smith  v.  Minor,  1  Coxe\-  Rep.  16. 

To  say  of  a  merchant  "you  keep  false  books,  and  I  can  prove  it,"  is  actionable. 
Backus  \.  Richardson,  5  Johns.  Rep.  476. 

To  say  to  a  witness,  while  he  is  giving  his  testimony  in  a  cause  in  Court,  to  a  point 
material  to  the  issue,  •'  that  is  false,"  (meaning  what  the  witness  said  was  false)  is 
actionable;  i'or  when  spoken  maliciously,  tbey  are  equivKlent  to  a  charge  of  per- 
jury. M-Cluughry  V.  Wetmore,G  Johis.  Rep.  82. 

To  say  of  the  plmn^iff,  a  merchant,  "  .'te  vd'lbe  a  bankrupt  in  six  months,"  isac- 
tionable.  Else  v.  Ferris,  1  Anth.  JV.  P.  Cas.  14. 


468  ACTIONS  UPON  THE  CASE. 

Pnrt  n,     the  words  spoken  of  an  attorney.fl)  or  physician,f2)  imply  au 

SiKtiiier.     admission  by  the  defendant  that  the  plaintiff  was  entitled  to  act 

"~~~~~^  in  those  characters,  and  charge  him  with  negligence  or  miscon- 

r.  Wise/    "  duct  in  the  practice  of  them,  it  is  sufficient  to  give  general  evi- 

4  T.  Rei).  366. 


Smith  V.        So  ot  a  blncksmiih.  Burtch  v.  J\'"ickerson,  \7  Johns.  Rep.  217. 

Charging  plwitit  iff  with  hav'fijj  kept  a  bawrJi/  house,  is  actionable  in  itself,  this  be-^ 


laylor  ^  .„„„„    

^^fW   R6D  -        5>  r  J  J 

igg  ing  an  indictable  offence,  involvitig  moral  turpitiiile.    Jllartin  \ .  StilliveU,  IS  Johns 

Jiep  27.";. 

It  is  aciionable  to  s.-^y  of  anoth'  r,  he  made  and  published  a  libel.  A7idres  et  al.  v- 
Koppenhecifer,  3  Serg   &  R.  Rep,  255. 

To  sav  o('  a  woman,  she  took  medicine  to  kill  the  bastard  child  she  was  like  to 
have,  and  she  did  kill  it,  iJc.  is  aciionable.  Widrig  v.  Oyer  et  vx.  13  Johns.  Rep. 
lU. 

The  words,  you  area  vagrant,  are  actionable.  JMiles  v.  Oldfield,  4  Teates'' Rep. 
423. 

Words  which  do  not  amount  to  a  direct  anil  positive  charge  of  a  crime,  but  which 

are  spoken  hypothetical!)  ex.gr.  I  ivitl  venture  anything  he  has  stolen  my  booh, 

i         are  actionable  ;  top  if  they  were  not,  it  would  be  easy  for  the  defamer,  by  cunningly 

f'  adopting  such  form  of  expression,  to  ruin  repiitaiions  with  i  npuuity.    j^eyy.  Otis, 

8  Mass.  Rep.  1 22.     Et  vide  Sa~vyer  v,  Eifert,  2  jYbtt  cj  JM-  Cord's  Rep.  511 . 

Words  charging  a  married  womau  wiih  adultery,  are  not  actionable  in  them- 
selves ;  but  I  he  plaintiff  must  allege  and  pro?e  some  special  damage.  £uyi  et  iix. 
V.  Gillespie,  2  Joh7is.  Rep.  115. 

Contra  in  Pennsylvania.  .  hidres  et  nx.  ▼.  Koppenheafer ,  3  Serg  (J  R.  Rep.  255. 

To  say  of  woman  "  she  is  a  common  prostitute,  and  I  -will  prove  it,"  is  not  ac- 
tioiiable.  Brooker  v.  Coffin.  5  Johns.  Rep.  1S8. 

So  to  call  lier  a  whore.  Frisbie  v.  Fniuler  et  ux.  2  Con.  Rep.  707. 

Sed  vide  mhon  v.  Lyles,  2  .^'ott  &  AJ' Cord's  Rep.  204.  Elliott  v.  Ailsbnry,  2 
Bibb's  R-p.  '-ili. 

An  action  of  slander  lies  for  charging  the  plaintiff  with  a  crime  committed  in 
another  State,  although  the  plamtiff  would  not  be  amenable  to  justice  in  that  State. 
Van  Ankin  v.  Westfall,  14  Johns.  Rep.  233. 

An  action  of  slander  will  lie  upon  cha'  ges  made  before  a  Court  Jifartial,  that  are 
false  and  malicious,  although  on  a  mailer  altogether  of  military  cognisance.  Alilom 
V.  BHrnsides  et  al.  1  J^'ott  &  Al'  Cord's  R^p.  426,  n. 

To  call  a  clerj^yman  "  a  drunkard,''  is  actionable.  Ai'Alillan  v.  Birch,  I  Binn. 
Rep.  178.  S.  P.  Chaddock  v.  Briggs,  13  Alass.  Rep.  248. 

To  say  of  a  man  •'  he  has  sworn  false,"  is  not  actionable,  the  colloquium  being  of 
an  exira-ji'dicial  affidavit  beforf  a  justice  of  the  peace.  Shaffer  v.  Kintzer,\  Binn. 
Rep.  557.    Vmighati  v.  Havens,  S  Johns.  Rtp.  84. 

To  say  of  the  pUiiUifT"  she  .iivorefalsely  and  I  can  prove  it,"  is  not  actionable. 
Packer  ■v.  Spangler,  2  Biiin.  Rep.  60. 

A  dechiration  that  the  deVridant,  with  au  intention  to  injure  the  reputation  of  the 
plaiiitiff,  as  a  mf  reliant,  falsely  and  malici(;usly  spoke  of  him,  "  Air,  T.  I  must  tell 
you  you  have  received  more  tobacco  tkau  you  have  accounted  for  to  the  house,'' 
(raeamng  th,-'  m.  rcaiuile  house  of  which  the  plaintiff  and  defendant  were  partners) 
■without  a  colloquium,  is  good  after  verdict.  Iloylev.  Young,  1  Wash   Rep.  188. 

In  J^'orth  Carolina  it  has  been  ruled,  to  say  to  the  plaintiff  "you  swore  false,  in 
\     two  part'culais  in  one  oath  in  Court,"  is  actionable.    Hamilton  v.  Dent,  1  Hayvi. 
Rep.  116. 

In  South  Carolina,  to  call  a  while  man  a  mulatto,  is  actionable,  without  a  special 
damage.  Eden  v.  Legare,  I  Bay's  Rep.  171.  Jibing  v.  Wood  et  ux.  1  J\'olt  S^ 
At  Cord's  hep.  184. 


■^ 


ACTIONS  UPON  THE  CASE,  ^gO 

dence  of  his  havins;  practised  in  the   profession.     In  the  last  Ch  VI.  s.  i. 
case,  however,  it  should  be  observed,(j)  that  though  the  plaintiff     ^'»"''''«"- 
had   been  called  in  as  a  physician  to  prescribe  for  a  person-'        """"* 
on  whom  the  defendant  attended  as  apothecary,  and  the  defend- gan  i,,"somerI 
ant,  speaking  of  his  prescription,  said,  "  Dr.  S ,"  the  Judees*'''"'^'''^'*""*' 

c     ,        ,,  -ni  II        1-    •  1     1  1  •  tOl  ;  and  Stat. 

ot  the  Common  Pleas  were   equally  divided   on  the  question,  55  Geo.  3, 
•whether  it  was  necessary  for  the  plaintiff  to  give  further  evi-**'  i^*'**^'* 

«...  .    .  .  .  apothecaries. 

dence  of  his  being  a  physician  than  his  having  practised  as  such ; 
90  that  before  such  evidence  is  dispensed  with,  it  ought  clearly 
to  appear  that  the  defendant  treated  the  plaintiff  as  a  person 
qualified  to  act. 

The  plaintiff  must  next  prove  that  the  words  laid  in  the  de^ 
claration,  or  at  least  as  to  some  of  them, (2)  were  spoken  by  the 
defendant  ;(c)  for  words  spoken  in  the  third   person  will    not(2)Compag- 


,7 


To  say  of  the  plaintiff,  that  **  he  harboured  the  defendant'' s  negro."  is  not  action- 
able without  proving  a  special  damage.   Crosheys  v.  O'Srixcoll,  I  Bay's  Rep.  iSl. 

To  call  a  man  "a  danmed  rogue."  h  not  actionable.  Caldwell  v.  Abbey,  Har- 
din's Rep.  .SSO. 

Nor  [sit  actionable  to  charge  a  man  with  "  embezzlitig goods ."  ibid. 

Words  spoken  by  a  party  or  his  counsel,  in  the  course  oFa  trial  are  not  actionable 
if  they  be  pertinent  to  the  issue.  Vigours  v.  Palmer,  1  Broivne's  Rep.  40.  Sivea- 
ringen  v.  Birch,  4  Yeates'  Rep.  32'2. 

Where  the  defendant  in  a  suit  before  a  justice,  turned  to  a  witness  who  had  just 
finished  his  testimony,  and  said  to  him  you  have  sivorn  a  manifest  lie,  it  was  held 
that  the  words  were  actionable.  Kean  v.  McLaughlin,  2  Serg.  SJ  R.  Rep.  469. 
Sed  contra.  Badgley  v.  Hedges,  1  Penning  Rep.  233. 

So,  if  words  actionable  in  themselves,  bi'  spoken  by  memb'is  of  the  same  church, 
in  the  course  of  their  religious  diffcipline,  and  without  malice,  no  action  will  lie,  and 
of  this  the  jury  will  decide.  Jarvis  v.  Hatheivay,  3  Johns.  Rep.  180. 

So  for  words  spoken  by  the  def-ndant,  br-for<i  a  Presbytery,  in  the  course  of  his 
defence  against  charges  there  brou,i;ht  against  him  by  the  plaintifT,  no  action  will 
lie,  if  the  defendant  do  not  wander  designedly  from  the  point  in  question  to  utter 
them.  JVtMillan  v.  Birch,  I  Binn.  Rep.  178. 

So  charges  contained  in  a  petition  to  the  council  of  appointment,  for  the  removal 
of  a  public  officer,  although  false,  are  not  actionable,  unless  express  malice  be  shewn. 
Thorn  v.  Blanchard,  5  .Tohns.  Rep.  508. 

After  a  verdict  which  ascertains  words  to  have  be^n  spoken  maliciously  their 
iDcaning  will  he  taken  to  be  in  tht  ir  popular  sense.  Beers  v.  Strong,  Kirb.  Rep.  12. 

The  natural  import  of  words  will  be  the  sense  in  which  they  will  be  construed, 
and  the  old  rule  is  done  away.  Rue  v.  Mitchell,  2  Dall.  Rep.  58. 

Words  will  not  be  constnicd  in  mitiori  sensu.  Walker  v.  Winn,  ^  Mass.  Rep. 
248.  Andres  etux.y.  Koppenheafer ,  3  Seig.  &  R.  Rep.  255.  Hoyler.  Young. 
I  Wash.  Rep.lSH.  Wilson  v.Higg,lJ\/ott  &  M'Cord's  Rep.'2l7.  Sawyer  y.Ei - 
fert,2Do.  511. 

Where  words,  otherwise  actionable,  are  explained  at  the  time,  by  a  reference  to 
ft  known  and  puriirular  transaction  ;  they  are  to  be  construed  accordingly  ;  and  be= 
ing  so  explained,  they  were  held  not  to  be  actionable.  Van  Rensselaer  v.  Dole. 
I  Johns.  Cas.  279. — Am. Ed. 

I    (c)  It  is  snffici'-nt  to  prove  the  substance  of  the  words  lai<l  in  the  narr.  Miller  v. 
Miller,  8  Johns.  Rep.  58.    Kennedy  v.  Loxvry,  I  Binn.  Rep.  393.    Henfi  v.  Ring- 


nonw.  Martin , 
2  Black.  790. 


470 


ACTIONS  UPON  THE  CASE. 


Part  II.      support  a  declaration  for  words  spoken  in  the  second  ;(l)(rf)  nor 
Slander.     ^yQrjjs  spoken  by  way  of  interrogation  a  charge  of  words  spoken 


iffimativelyA2")   But  having  proved  the  words  laid  in  the  declara- 

(1)  Vide  Re:i^.         ,  1  •        •  -J  .,  J  x^u        •       *   *   J 

T).  Berry,       tion,  he  may  also  give  in  evidence  other  words  not  therein  stated 
4T.Rei).2i7.  tQ   shew  the   malignity  of  the  defendant,  although   such  other 

(2)  Barnes     words  are  themselves  sufficient  to  be  the  foundation  of  an  ac- 
V.  Hoiioway,  tion.(S)(c)     Where  special  damage  is  the  gist  of  the  action,  that 

M  icquister    '  '""^^^  3  Yeates''  Rep.  508.    Brown  v.  Lamberton,  2   Binn.  Rep.  34.    Bornman  v. 
1  Campb.  49.  Boyer,  3  Do.  515.  J\i'ey  v.  Otis,  8  J\lass.  Rep    122. 

Leex'.  Huson,|    After  jjroving  tlie  words  in   the  nmT.  the  plaitiiiff  may  give   in   evidence  other 
Peake's  Las.    -jvorjs  not  actionable  to  shew  the  malice.    JFallis  v.  Jllease,  3  Binn.  Rep.  546. 
«  .  i    .1      1  %     So  he   may  actionable  words,  spoken  after  the  suit  brought.     IVallis  v.  Mease, 
Oxford  and      ^  Binn.  Rep.  546.  Shock  v.  M'Chesney,  2  Yeates^  Rep.  473.  Kean  v.  M^ Laugh- 
Wife,  cor.        //«,2  Serg.  &  R.  Rep.  469 

Lawrence  J.        That  words  were  spoken  in  the  heat  of  passion,  is  matter  of  mitigatioQ  merely. 
Heref.  Sura.    £^    ^  Ferris,  Anth  JY.  P.  23.— Am.  Ed. 
Ass.  1808. 

Sed  vde  ((i)  The  rule  in  the   text  has  been  adopted   by  the  following  cases.     JYIiUerw 

Meadw.Dau-^;jy^.^^^^  8  Johns.   Rep.   58.    Boyle  v.  Young,  \   Wash.    Rep    188.     M' Connelly. 
Cas?l'25  cont^  •^^'  ^'"^^  ^  ^"^^S-  ^  R-  J^^P-  2-3.    Wolfs.  RocUfev,  1  Bar.  &  Johns.  Rep.  409.- 
Am.  Eu. 

Evidence  in  Slander. 

(e)  From  the  reports  oT  Riistell  v.  jyiacquisler,ika(\  Lee  v.  Huson,  (vide  mai-gin) 
it  does  not  appear,  whether  the  subsequent  words  en  libels  offered  in  evidence,  had 
exprt.ss  reference  to  those  which  were  the  subject  of  the  suit ;  but  in  all  the  other 
cases  they  had. 

In  an  action  of  slander  the  plaintiff  may  give  in  evidence  his  rank  and  condition 
in  life  to  aggravate  the  damages,  and  the  defendant  may  avail  himself  of  such  evi- 
dence when  it  will  have  a  tendency  to  mitigate  the  damages.  Larned  v.  Buffington, 
3  jyiass.  Rep.  546. 

So  the  defendant  may  give  in  evidence  under  \.\ie  geiieral  issue,  facts  tending  to 
mitigate  the  damages,  which  he  could  not  do  when  he  has  pleaded  the  truth  of  the 
words  \njiistiJicatio7i.  ibid. 

The  plaintiff  will  not  be  permitted  to  prove  that  the  defendant  has  spoken  the 
like  words  as  laid  in  the  declaration  since  the  commencement  of  the  action.  Holmen 
V.  Brown,  Kirb.  Rep.  151. 

In  this  action  ihe  i)laintiff's  general  character  may  be  inquired  into  where  he  has 
directly  set  up  his  character  to  be  good,  and  will  go  to  the  point  of  damages. 
Bninson  v.  I^ynde,  I  Root's  Rep.  354.  S.  P.  Seymour  v.  J\lerrils,ibid.  459.  Vide 
Austin  ■^■.  Hanchet,'!  Do   148.  1^ 

So,  in  jVorth  Curolina  the  defendant  may  give  in  evi<lence  in  mitigation  of  da- 
mages, the  plaintiff's  gfiieral  character.  Vich  v.  Whitjield,  2  Hayio.  Rep.  222, 
Buford  V.  M'Luny,  1  jXott  &  M' Cord's  Rep  268. 

So  in  Jllassachisetts.   Wolcott  v.  Hall,  6  JVIass.  Rep.  514. 

But  in  Vermont  the  rule  is  otherwise.   Smith  v.  Shvmiuay,  2  Tyl.  Rep.  74, 

In  an  action  of  slander,  evidence  will  noi  be  received  that  there  was  such  a  report 
before  the  defendant  spoke  the  words  laid  in  the  narr.  Lewis  v.  JVl'fes,  1  Roefs 
Rep.  346. 

Bui  the  defendant  maybe  permitted  to  prove,  in  mitigation  of  damages,  from 
whom  she  heard  the  story.  Leister  v.  Smith,  2  Root's  Rep.  24. 

HoweviT,  after  a  person  has  affirmed  a  scandal,  his  adding  that  a  particular  per^ 
son  told  him  so,  will  not  be  received  in  eTidence.   Austin  v.  Hanchet,  ibid,  148. 


\ 


ACTIONS  UPON  THE  CASE.  4y£ 

also  must  be  proved,  and  must  appear  to  have  been  the  legal  Ch.  vi  s.  i, 
and  natural  consequence  of  the  slander;  for  the  wrongful   act     S'*'"'*''^''- 
of  a  third  person,  as  that  he  dismissed  the  plaintiff  from   his 
employ  before  the   end   of  the  term  for  which  they  had  con- 
tracted, will  not  support  the  action,  though  such  dismission  was 


The  defendant  niny  give  in  evidence,  in  mitigation  of  damages,  that  he  only  re- 
peated a  current  report,  or  that  others  had  public!)  declared  the  same  thing.  Cook 
V.  Barkley,  Penning.  Rep.  169. 

The  ileftfndaiit  may  prove,  in  mitigation  of  damages,  that  a  person  told  him  the 
■words  laid  in  the  declaration.  Kennedy  v.  Gregory,  1  liinn.  Rep.  85.  Vide 
Sch-wartz  V.  Thomas,  2  Wash.  Rep.  215. 

In  slander,  ihe  plaintiff's  general  character  is  in  issue.  Springstein  v.  Field,  Anth. 
J\r.  p.  185,  n.  a. 

But  the  dt-fendant  cannot  give  in  evidence  the  general  character  of  the  plaintiff, 
as  an  insulting,  provoking,  and  quarrelsome  man;  not  that  6e/b)'e  the  speaking  of 
the  slanderous  words,  the  pluiniiff  was  in  the  habit  of  villifyiiig,  insulting,  and  pro- 
voking defendant  and  his  family,  jyt Alexander  v.  Earns,  6  JMunf.  Rep.  465. 

JMitigation  of  damages. 

Whether  a  person  who  repeats  a  slander,  but  who  at  the  same  time  mentions  the 
person  from  whom  he  received  it,  may  plead  that  circumstance  in  justification, 
seems  to  depend  on  the  intent,  or  qito  ariniu.  with  which  the  words,  with  the  name 
of  the  author,  are  repeated.  Dole  v.  Lyon,  10  Johns.  Rep.  447. 

If  the  words  are  uttered  generally,  the  diftndant  cannot  justify  by  giving  Ihe 
name  of  the  author,  by  his  plea,  or  at  the  ti-i:<l,  it  can  then  go  only  in  mitigation  of 
damages  ;  but  if  at  the  time  he  rept-att  d  the  words,  he  gave  the  name  of  the  author, 
so  thpt  the  party  injured  might  have  his  action  against  him, this  will  be  a  justification. 
Binns  v.  JM^Corkle,  2  Brorvne^s  Rep.  79.  El  vide  Hersh  v.  Ringwult,  3  Yeates' 
Sep.  508.  Kennedy  v.  Gregory,  1  Binn   Rep.  85. 

It  seems,  that  the  defendant,  in  miiigation  of  damages,  may  give  evid<'nce  of  cir- 
cumstances which  had  induced  a  suspicion  of  guilt.  Williams  et  ux.  v.  JVIaycr  et  itx. 
cited  1  Binn.  Rep.  9'2,  n. 

But  he  catmot  give  in  evidence  that  he  has  been  in  the  habit  of  relating  the  cir- 
cumstances in  a  nianner  different  in  some  essential  respects,  from  that  charged  in 
the  narr.  though  he  first  has  proved  that  such  relation  of  the  circumstances  was 
true.    Wills  v.  Church,  5  Serg.  &  R.  Rep  190.  jt 

A  letter,  slating  that  the  writer  had  heard  of  a  slanderous  report,  is  good  evidence 
to  prove  the  circulation  of  the  report,  and  may  be  read  for  that  purpose  ;  the  hand 
•writing  of  the  person  being  proved  ;  but  il  would  be  inadmissible  to  prove  that  the 
defendant  propagaled  the  report.  Schwartz  v.  Thomas,  2  Wash.  Rep.  215. 

Qnere,  Whether  in  an  action  for  words,  proof  of  circumstances  of  suspicion,  not  '" 
amounting  tn  full  justification,  be   admissible  bv  way  ot   mitigation  of  damages,  on 
the  plea  of  not  guilty.   Ch-atwood  v.  JMuyo,  5  Alunf.  Rep  16. 

On  thi- ph'M  of  not  gidlly,  they  are  not  admissible.  J[l'' Alexander  s.  Harris,  (J 
Munf.  Rep.  465. 

Sed  contra.  BuJ'ord  v.  M^Lumj,  1  JVoU  &  M'  Cordis  Rep.  2G8.  Bailey  v.  Hyde, 
3  Con.  Rep.  463. 

Where  the  words  are  in  themselves  actionable,  aiul  necessarHy  import  a  charge 
of  some  crime,  there  is  no  need  of  staling  the  nianner  or  occasion  of  speaking  them. 
Foivle  V.  Robbim,  12  Mass.  Rep.  498.— Am.  En. 


^yg  ACTIONS  UPON  THE  CASE, 

Partii.     in  fact  induced  by  the  slaniler.(l)(/)     But  though  the  special 

Slander,     damage  must  be  proved  as  laid  where  it  is  necessai'y  to  main- 

tain  the  action,  yei  the  mere  statement  of  special  damages,  in  a 

Wiicock?^    case  of  words  actionable  in  themselves,  does  not  make  it  neces- 

8  Er»st,  1.       saiy  for  the  plaintiff  to  prove  that  he  has  in  fact  sustained  such 

(2)  Gutst  V.   damage. (2)(,i5 ) 

Ll.^yd,  Bui.  

^,  p_  g        _ — . 

( /)  111  actions  ot  slander,  where  the  words  are  not  actionable  in  themselves,  the 
niHi'it  of  damage  must  be  confined  to  the  particular  damage  laid  in  th  imrr.  The 
plain'ifT  cannot  give  evidence  of  the  general  loss  of  reput<<tiOD  by  reason  of  the  slan- 
der. Hrrrick  V.  Lapham,  \0  Johns.  Rep.  281. 

Whetlier  being  rilusfd  admission  into  a  Presbytery,  is  such  special  damage  as 
the  law  will  take  notice  of,  dubitatur.  M'Millan  v.  Birch,  1  Binn.  Rep.  178. — 
—Am.  Ed. 

Pleadings,  &c.  in  Slander. 

Cg)  In  an  action  of  sKinder,  special  damage  cannot  be  proved  without  being  alleged 
in  the  nurr.  Bostviick  s .  Jv'ickeUon,  Kirb.  Rep.  65.  S  P.  Bostxnckv.  Jfa-wlei/, 
ibid.  290. 

In  jyiassachuseUs,  the  same  rule  was  recognised  in  an  action  iov  false  imprison' 
ment-  Rising  v.  Granger,  1  Muss.  Rep.  45. 

A  seni-ral  allegation  of  daraaijes  wdl  not  be  sufficient,  but  they  must  be  so  parti- 
cularly set  forth  in  the  narr.  as  to  ground  h  spt^cial  inquiry.  Kirb.  Rep.  65. 

The  truth  of  the  words  cannot  be  given  in  evidence  under  the  general  issue,  but 
must  be  pleaded  in  justification.  Barns  v.  Webb,  I  Tyl.  Rep.  17. 

S.  P.  in  JVew  York.  Elses,  Ferris,  1  Anth.  J\r.  P.  Cas.  I4.  Shepardv.  Merrill, 
1.3  Jnhns.  RepA75. 

If  the  narr.  be  insufficient,  and  it  do  not  contain  any  introductory  matter  or  coUo- 
quium  by  reference  to  which  they  can  be  rendered  so,  the  ina<lequacy  of  it  cannot 
be  made  good  by  a  justification  and  confession  of  the  words  in  bar.  Pelton  v.  Ward 
3  Caines'  Rep.  73. 

Ill  an  action  for  words  spoken  of  an  attorney,  the  narr.  must  allege  a  colloquium 
respecting  his  profession,  or  it  will  be  fatal  on  a  motion  in  arrest  of  judgment.  Gil- 
bert v.  Field,  ibid.  329. 

The  narr.  in  an  action  of  slander  will  be  good  if  it  state  the  words  spoken  to  be  ia 
subslunce.  &.c.  Kennedy  v.  Loivry,  1  Binn.  Rep.  393. 

Sed  vide  in  JVew  York.    Ward  v.  Clark,  2  Johns.  Rep.  12. 
^    So  words  spoken   in  the   third  person  will  support  a  narr.  for  words  laid  in  the 
second  person.    Tracey  v.  Harkins,  1  Binn.  Rep.  395,  n.    Sed  contra.  M'Connell 
v.  M'  Coy,  7  Serg.  ^  R.  Rep.  2^23. 

In  an  action  of  slander,  it  is  sufficient  if  it  be  substantially  alleged  that  the  words 
laid  in  the  rian:  were  spoken  of  the  plaintiff.  Brown  v.  Lamberton,  2  Binn, 
Rep.  34. 

Where  the  words  imply  malice,  it  need  not  be  stated  in  the  narr.  Hamilton  t, 
Denl,  1  Hay^v-  Rep.  116. 

An  inuendo  stands  in  the  place  of  aforesaid;  and  cannot  properly  be  used  to  ex- 
tend the  meaning  of  words  beyond  their  own  import ;  nor  to  make  that  certain  which 
was  before  uiictriain.  Caldwell  v.  Abbey,  Hardin's  Rep.  529.  M' Clurg  \ .  Ross, 
5  Binn.  Rep.  219. 

If  the  words  as  laid  in  some  of  the  counts  in  the  nar7\  be  actionable,  and  those 
laid  in  other  of  the  counts  be  not  actionable,  and  entire  damages  be  given,  judgment 
will  be  arrested.  Hopkins  v.  Beedle,  1  Caines''  Rep.3i7, 


ACTIONS  UPON  THE  CASE,  q^y^ 

If  a  libel  be  the  injury  complained   of,   the  publication  must  cii.  VI.  s.  i. 
be  shewn,  either  by  proof  that  the  defendant  wrote  and   pub-      Slander, 
lished  it  ;  or  that,  being  a  bookseller,   it  was  sold   in   his  shop,  — — — 
by  himself  or  his  servant ;(])  or,  in    case  of  a  newspaper,  that  )^/,„J„'' J' 
the  paper  was    published   to  the  world   in   the  ordinary  way, (2)  l^"""'- 2C86. 
and  that   the  defetuhiiit  is   the  printer,  editor,   or  proprietor  of  ^a)  r^x  v, 
it;  which  may  be  shewn  bv  evidence  that  he  gave  a  bond  to  the  '^«-'a''=<"> 

*  o  P<akt''3 

Stamp  office  for  payment  of  the  duties,   and    had   occasionally  Cas.  75. 
applied  there  on  the  subject. (3)(/i)     And  now  by  Stat.  38  Geo..,.  ..^^^ 

T'  l>liain, 
4T.  Rep.  126, 

So  \n  Pe7uisifha7mi,  (-nilve  (lamas' s  being  assesscfl  upon  seveml  counts  in  s\an- 
der,  07!e  of  which  is  bail,  jiils;i»"nt  will  he  reversed,  and  a  venire  de  novo  awarded. 
Shaffer  v   Kintzer,  \  Binn.  Rfp   5,>7. 

But  wher''  n  count  con'ainerl  words  acknowledged  to  bf  actionable,  coupled  with 
others  not  actionable,  but  spoken  «t  one  time  ;  the  latter  will  lie  cousiilered  as  m-  rely 
in  a,e:g:ravation,  and  the  jiirv  havinp;  found  entire  damages  will  t\ot  vitiate  their  ver- 
dict. Chipman  v.  Cook,2  Tyl.  Rep.  4.i6.  S.  P.  Bloom  et  ux.  x.  Bloom,  5  Serg.  SJ  R. 
Rep.  mi. 

If  the  defendant  attempt  to  jnstifv  a  charge  of  f  lony,  he  miistjuslifv  ss  to  the 
specifip  charge  luid,  and  cannot  set  up  a  charge  of  the  same  kitid,  but  <lisiinct  as  to 
the  subject  mMt'er.  ^Indreivn  v,  Vandiizer ,  11  John^.   Rep.  38. 

Where  the  words  charpjfd  to  have  been  sp^'ken  impnie  to  the  plaintiff  the  crime 
of /)fr;M?'2/,  without  fiMallficalion,  the  defendant,  to  make  out  a  jnsiification,  must 
prove  that  the  plaimiff"  in  g:ivin,e;  his  evidence,  »///"«%  awJ  corruptly  ^wovi  false. 
M'Kinly  v.  Rob,  20  Johns.  Rep.  351, 

Slander  of  the  husband,  and  shinder  of  the  wife,  cannot  be  joined  in  the  same  ac- 
tion. Ehersoll  V.  K'ni.g  etu.r.  3  Binn.  Rep.  555. 

A  narr.  laying  that  "  there  was  a  collusion  between  .^,  B.  C-  and  D.  to  make 
jE.  swear  a  false  oath,"  &c  is  not  si.ppfirled  by  proof  of  his  having  siid  "  th'  re  was 
collusion  between  ^.  B.  and  C.  to  make  E.  swear  a  false  oath."  Johnston  v.  Tait, 
6  Binn.  Rsp.  121. 

Of  the  Pleadings. 

{h)  A  libel  is  a  malicious  public;'tion,  whether  true  or  false,  expressed  either  in 
printing  or  writing,  or  by  sij;ns  and  pictures,  and  with  intent  to  hiacketi  the  me- 
morv  of  one  dead,  or  the  reputation  of  one  who  is  alive,  and  expose  him  to  public 
hatred,  contempt,  and  ridicule    Commomvealth  v.  Clap,  4  Mass.  Rep   163. 

No  action  can  be  maintained  for  a  libel  upon  a  petition  for  redress  of  griev- 
ances, -whether  the  subject  matter  be  true  or  false,  merely  on  its  being  preferred  to 
either  branch  of  the  Gfiieial  Assembly,  or  disclosed  loany  of  its  members  Hari'is 
V.  Huntingdon,  2  Tyl.  Rep.  129- 

Standing  a  sealed  libellons  letter  to  the  plaintiff  himself  is  not  a  ground  for  an  ac- 
tion against  the  defendsnt.  Lyle  \    Clason,  1  Caines''  Rep   581, 

No  action  will  lie  wiihout  a  puldication,  but  an  imMctirient  may.  ibid. 

If  separate  suits  are  brought  against  each,  the  plaintiff  can  have  hut  one  satisfac- 
tion, hilt  ma)  elect  de  melioribusdathins  ibid. 

it  seems,  ttiat  where  a  person  addresS'  s  a  complaint  to  persons  competent  to  re- 
dress the  grievances  complained  of,  no  actron  will  lie  against  him,  at  the  suit  of  ano- 
thei  who  is  named,  whelhi-r  his  stat»ment  be  true  or  false,  or  his  motive  innocent 
or  m»licioii9.   Thorn  v.  Blanchard,  5. Johns.  Rep.  508, 

Though  the  words  in  such  »  case  be  iaise  and  actionable  ia  themselves,  yet 


Sluiider, 


^^  ACTIONS  UPOX  THE  CASE. 

Part.  11.  3,  c.  78,  it  is  enacted  (sect.  1,)  That  no  person  shall  publish  a 
newspaper  until  affidavit  or  affirmation  shall  be  made  and  deli- 
vered to  the  commissioner  of  stamps  (sect.  2,)  specifying  the 
names,  additions,  descriptions,  and  places  of  abode  of  all  and 


it  is  incumbent  on  (he  plaintiff  to  prove  express  malice  ;  or  that  the  petition  was  ac- 
tually malicious  and  groundless  and  presented  merely  to  injure  the  plaintiff's  cha- 
i-acler.  ibid. 

An  action  for  a  libel  will  lie  against  two  or  more,  if  it  be  a  joint  act  done  by  all. 
Ilurris  v.  Hiintington  et  al.  2  Tijl.  Rep.  12'J.  Thomas  v.  Rumsey,  6  Johns.  Rep.  26, 

Parol  evidence  to  prove  the  contents  of  a  libtl  cannot  be  admitted.  Aspimoall  v. 
jyhitmore,  1  Boot's  Rep.  408. 

But  it  was  admitted  to  prove  an  averment  in  the  nai'r.  that  the  plaintiff  was  Stat: 
printer,  and  president  of  a  bank  ;  these  facts  being  stated  merely  as  iadacement. 
Sonthviiclc  v.  Steveiis,  XQJohiis.  Rep.  443. 

Whether  the  libtl  alluded  to  the  plaintiff  or  not,  is  a  question  of  fact  for  the  jury 
to  decide.   Va7i  Vcchten  v.  Hopkins,  5  Johns.  Rep.  211. 

^^'hat  facts  will  he  deemed  by  the  Court,  on  a  demurrer,  a  sufficient  publicatioti 
of  a  libel,  vide  Zeiw's  v.  Few,  ibid.  1. 

The  ptaintifTciiniiot  prove  by  witnesses,  that,  from  reading  the  libel,  they  believe 
the  person,  intended  in  the  libel,  was  the  plaintiff.  Van  Vechten  v.  Hopkins,  ibid. 
211. 

An  imiendo  cannot  be  proved  ;  but  where  an  averment  qt  colloquium  introduces 
extrinsic  matter  into  tiie  pleadings,  that  is  a  proper  subject  of  proof,  ibid. 

It  is  no  infraction  of  the  law  to  publish  temperate  investigations  of  the  nature  and 
forms  of  government.  Respublica  v.  Dennie,  4  Yeates'  Rep.  267. 

Accusations  preferred  to  the  Governor  of  the  State,  against  the  character  of  pub- 
lic officers,  are  so  far  in  the  nature  of  judicial  proceedings,  that  the  accuser  is  not 
held  to  prove  the  truth  of  them  :  if  he  can  shew  that  they  did  not  originate  in  ma- 
lice, and  without  probable  cause,  he  is  not  liable  to  an  action.  Grai/  v.  Pentland, 
2  Sei-g.  &  R  Rep.  23. 

That  the  7j«rr.  professes  to  relate  or  transcribe  a  libel  secundum  tenorem,  " in 
ht£C  verba,  viz."  and  did  not  follow  the  wonls  thereof,  but  made  immaterial  altera' 
tions  from  the  libel,  is  no  ground  to  arrest  the  judgment.  If  it  can  avail  any  thing, 
it  must  he  on  a  motion  for  a  new  trial.  Calhoun  v.  jM' Means,  1  JVott  &  JM'  Cord's 
Rep.  4;:4. 

In  an  indictment  for  publishing  an  obscene  book  or  print,  it  is  sufficient  to  give  a 
general  description  thereof,  and  to  aver  its  evil  tendency,  without  copying  the 
book,  or  minutely  dtscribing  the  print.  Comtnonivealth  v.  Holmes,  17  Alass.  Rep. 
336 

Where  entire  damages  were  given  on  the  whole  declaration,  and  o«eof  the  counts 
IS  defective,  judgiT'.erit  will  be  arrest<^d.    Cheetham  v.  Tillotson,ibid.  430. 

Ir.  an  action  for  a  libel,  the  defendant  may  give  in  evidence,  in  mitigation  of  da- 
mages, a  former  publication  by  the  plain'iff  to  which  the  libel  was  an  answer,  to  ex- 
plain the  subjf  ct  matter,  occasion,  and  intent  of  the  (Jef<^ndanl's  publication  ;  but 
such  prior  publication,  thougli  a  libel,  will  not  be  received  under  the  plea  of  justi- 
fication. Hotchkiss  v.  Lothrop,  I  Johns.  Rep.  285. 

Quere,  In  ati  action  f':r  •%  libel,  can  the  defendant  give  in  evidence  under  the 
gen..Tal  issue,  the  general  bad  character  of  the  plaintiff"  in  mitigation  of  damages. 
Fool  V.  Tracey,  ibid  46.     Et  vide  Wolcott  v.  Hall,  6  Mass.  Rep.  518. 

Undtrthe  jilea  of  not  guilty,  '.he  plaintiff  eannot  give  in  evidence  subsequent  pub- 
lications by  the  defendant,  to  stiew  c[uo  animo  the  defendant  published  the  para- 


ACTIONS  UPON  THE  CASE.  ^y^ 

every  person  and  persons  who  are  intended  to  be  printer  and  Ch.vi.  s.  i. 
printers,  publisher  and  publishers  thereof,  if  the  number  of  pro-  Slamler. 
prietors,  exclusive  of  the  printer  and  publisher,  shall  not  exceed 
two,  and  in  case  the  same  shall  exceed  that  number,  then  of  two 
such  proprietors  exclusive  of  such  printer  and  publisher,  and  a 
true  description  of  the  house  or  building  wherein  any  such  pa- 
per is  intended  to  be  printed,  and  likewise  the  title  of  such  paper. 
The  Statute  then  (sect.  9,)  proceeds  to  enact,  that  those  affida- 
vits, &c.  or  copies  thereof,  certified  to  be  true  copies  as  after- 
mentioned,  that  is  (sect.  14,)  under  the  hand  or  hands  of  one  or 

graphs  in  question,  where  the  intentions  of  the  publication  are  not  equivocal.  Stuart 
V.  Lovell,  2  Starkie^s  Jlep.  93. 

By  a  <lefault,  and  interlocutory  judgment,  the  fact  of  publication  is  admitted.  Til- 
letsonv.  Cfieetham,  3  Johns.  Rep.  56. 

As  to  evidence  of  publication,  vide  Southrdck  v   Stevens,  10  Johns.  Rep.  443. 

An  unsuccessful  attempt  to  justify  tlie  words  or  libel,  is  evidence  of  malice.  Jack- 
son V.  Stetson  et  ux.  15  Mass.  Rep.  48. 

It  is  sufficient  proof  of  the  defendant  being  the  printer  of  a  newspaper  in  which  a 
libel  was  published,  for  such  paper  to  go  to  the  jury,  that  the  papers  were  deposited 
in  a  hole  behind  the  door  of  a  public  library,  and  that  the  printer's  common  clerk 
received  payment  therefor.  Re.'!pubU<a  v.  Davis,  3  Yeates'  Rep.   I'28. 

The  defendant  broke  plaintiff's  close,  and  posted  on  his  door  a  wicked,  malicious, 
and  insulting  handbill,  and  then  setting  out  its  tenor, and  concluding  to  his  damage, 
&c.  is  good.   Gibbons  v.  Ogden,  2  South.  Rep.  853. 

The  rule  the  greater  the  truth,  the  greater  the  libel,  is  not  universally  true.  Cal- 
houn y.  M' Means,  1  JKoit  &  M' Cord's  Rep.  4'22. 

In  JMassachusetts,  the  defendant  cannot  justify  himself,  when  indicted  for  pub- 
lishing a  libel,  merely  by  proving  the  truth  of  the  publication.  Commonwealth  v. 
Clap,  iMass.  Rep.  103. 

Qitere,  in  Ji/eiv  York,  vide  The  People  v.  Crosioell,  3  Johns.  Cas.  337.  (Vide 
Act  &th  Jlpnl,  1805.) 

It  is  not  a  justification  of  a  libel,  that  the  defendant  signed  the  libellous  paper,  as 
chairman  of  a  public  meeting  of  citizens  convened  to  nominate  a  candidate  for  a  pub- 
lic office.  Letvisv.  Few,  5  Johns.  Rep.  1. 

In  an  action  for  a  libel,  under  the  general  issue,  the  defendant  may  give  in  evi- 
dence, in  mitigation  of  damages,  that  he  received  it  from  another.  Morris  v.  Duana, 
1  Binn.  Rep.  90.  n. 

In  an  action  for  a  libel,  the  libellous  matter  set  forth  in  the  plaintiff's  narr.  the 
words  "  U.  States,"  and  in  the  paper  produced  it  was  written  "  United  Slates," 
the  variance  was  held  to  be  immaterial,  and  the  Court  will  .xamine  the  context  to 
determine  whether  the  variance  be  immaterial  or  not.  Lewis  v.  Few,  5  Johns. 
Rep.  1. 

An  action  for  a  libel  lies  against  the  proprieti>r  of  a  gazette,  edited  by  another, 
though  the  publication  was  made  without  the  knowledge  of  such  proprietor.  Andres 
V.  Wells,  7  Johm.  Rep.  v'60. 

The  publisher  of  a  libel  is  responsible  to  th'  party  libelled,  notwithstanding  the 
libel  is  accompanied  with  the  name  of  the  author.  Dole  v.  Lijon,  10  Johns.  Rep. 
447.  Runkle  v.  Mcifer  et  al.  3  Yeates'  Rep.  518. 

An  action  does  not  lie  by  an  officer  of  a  ngunent  of  militia,  for  a  publication  re- 
flecting upon  the  officers  of  the  reg  ineni  generally,  wiibout  averring  a  special  da- 
mage. Sumner  v.  JJuel,  12  Johns.  Rep.  475.— Am.  Ed. 


A^jQ  ACTIONS  UPON  THE  CASK. 

Part  11,  more  of  the  commissioners  or  officers  in  whose  possession  the 
Sia  'I  V.  game  sliall  be,  which  hand -writing  must  be  proved,  though  that 
"~~~~~~"  they  are  such  commissioners  need  not,)  shall  in  all  proceedings* 
civil  and  criminal,  touching  any  newspaper  mentioned  in  such 
affidavit,  &c.  be  received  and  admitted  as  conclusive  evidence 
of  the  truth  of  all  matters  set  forth  in  such  affidavit,  Ike.  as  are 
thereby  required  to  be  therein  set  forth,  and  shall  be  received 
in  like  manner  as  sufficient  evidence  of  the  truth  of  all  such 
matters  against  all  and  every  persons  and  person  who  shall  not 
have  signed,  sworn  or  affirmed  the  same,  but  who  shall  therein 
be  mentioned  as  proprietor,  &c.  unless  the  contrary  be  satisfac- 
torily proved;  provided,  that  if  any  such  person  shall  prove  that 
he  has  signed,  sworn,  or  affirmed,  and  delivered  to  the  commis- 
sioners, or  such  officers  as  aforesaid,  previous  to  the  day  of  the 
date  or  publication  of  the  paper  to  which  such  proceedings  re- 
late, an  affidavit  or  affirmation  that  he  ha-  ceased  to  be  the  prin- 
ter, such  person  shall  not  be  deemed,  by  reason  of  any  former 
affidavit,  &c.  to  have  been  the  printer,  &c.  after  the  delivery  of 
such  affidavit,  &c. 

Having  made  these  provisions  in  regard  to  the  proof  of  such 
proprietor,  &,c.  the  Stat.  (sect.  10,)  enacts,  that  in  some  part  of 
every  newspaper  there  shall  be  printed  the  true  and  real  name, 
&c.  of  the  printer  and  printers,  publisher  and  publishers  of  the 
same,  and  also  a  true  description  of  the  place  where  the  same 
is  printed  ;  and  (sect.  II,)  that  it  shall  not  be  necessary  after 
such  affidavit,  &c.  or  a  certified  copy  thereof  shall  be  produced 
in  evidence  as  aforesaid  against  the  persons  who  signed  and 
made  such  affidavit,  &.c.  or  are  therein  named  according  to  the 
act,  or  any  of  them,  and  after  a  newspaper  shall  be  produced  in 
evidence  entitled  in  the  same  manner  as  the  newspaper  men- 
tioned in  such  affidavit  or  copy  is  entitled,  and  wherein  the  name 
or  names  of  the  printer  and  publisher,  and  the  place  of  printing 
mentioned  in  such  affidavit,  &c.  agree,  for  the  plaintiff  or  prose- 
cutor to  prove  that  such  newspaper  was  purchased  at  any  house, 
shop,  or  office  belonging  to  or  occupied  by  the  defendant,  his 
servant,  &c. 

It  is  also  enacted,  (sect.  12,)  that  service  at  such  house  or 
place  of  any  such  notice  shall  be  deemed  good  service,  with  the 
like  proviso  as  before,  when  another  affidavit  of  his  ceasing  to  be 
such  printer,  &c.  shall  have  been  delivered. 

The  Statute  has  also  provided,  (sect.  17,)  that  the  printer 
shall,  within  a  certain  time,  deliver  a  paper,  signed  by  himself 
to  the  commissioners,  which  may  be  produced  in  evidence,  when 
necessary,  upon  applieation  at  any  time  within  two  years. 


ACTIONS  UPON  THE  CASE.  4,»/v 

It  has  been  held,  that  a  paper  produced  is  not  only  evidence  ci..  Yl.  s.  i. 
of  the  publication,  by  the  defendant,  but  also   evidence   that  it     Slander. 
was  published  at  the  place  desciibed  by  the  paper.(l)     And,  in-        ^ 
deed,  in  the  case  of  a  newspaper,  which  from  its  very  nature  isHu,t,'^ioEast, 
intended  for  general  circulation,  proof  of  that  paper  being  cir-'J+- 
culated   in   any  county  is  proof  of  the  publication  of  the  libel  (^2)  pe,Bai- 
there.(2)  '^^^  •^,  '"  W""" 

In  cases  where  the  libel  is  in  a  foreign  language,  both   thCfi.ti,  Hilary, 
original  and  translation  must  be  set  out  in  the  declaration,(3)'^f^'^°'*^- 
and  in  addition  to  the  usual  evidence  of  the  libel,  the  translation  (3)  Z^-miijio 
must  be  proved  to  be  correct. (4)  eT.u'-ii.  ifi^. 

The  defendant,  on  the  general  issue,  may  insist  on  the  whole 
paper  or  writing,  in  which  the  libel  is  contained,  being  read,  to  ^p^j, J|.^  ^'  j, 
explain  the  parts  set  out  in  the  record  ;(5)  and  may  prove  that  Siumgs  attcr 
he  was  an  innocent  publisher,  as  that  he   delivered    the  paper 
without  knowing  the  contents  ;(6)  or  that  the  publication  is  a(5)Re'ct). 

L<  tiiibt'  ^t 

true  report  of  a  trial  at  law  ;t7)*  or  a  copy  of  a  report  of  the-2Gampb!4oo. 
House  of  Commons:;  81  or  the  notification  of  the  sentence  of  a...  .,  ,  „ 
court  martial  in  the  usual  form  ;  or  the  report  made  by  him  asw.  Aimcn, 
president  of  a  military  Court  of  inquiry  ;v9)t  or  that  he  was  giv-^^P*"^' 
ing  a  character  of  a  servant  ;(.10,  or  his  opinion  of  the  circum-^7)  Curry  w. 
stances  of  a  tradesman,!  1)  to  a  person  who  inquired  of  him  ;  or ^p^'j'"'glj^°^* 
confidentially  expressing  his  opinion  of  the  conduct  of  the  plain- 
tiff'in  a  particular  business  in  which  he  and  the  person,  to  whom '•^y'^.,,!^''^* 
a  letter  charged  as  a  libel  was  addressed,  were  jointly  inter- ST.Rtp. 293. 
ested,(12)  or  the  like  ;  for  such  tacts  sliew  that  the  communica- ..j)  j,.kyi  t>. 

tion  was  confidential,  and  that  there  wa§  no  malice  in  his  mind. ""'  J-  ^oore, 

2  N.  IS.  341. 

•  In  the  above  case  of  Curry  v.  Walter,  (he  Court  entertained  some  doubt  whe- y  '  '^' "1°"" 
ther  the  defence  set  ii[)  shnuid  not  have  been  ()lea'lc*d  specially  ;  and  no  judgment  ,)|i,  ,,s,,ri 
having  been  given,  ihai  doubt  must  be  considered  as  still  remaining.  Ttie  Chief  Bui.  N.  P.  8, 
Justice  EvilK,  at  JV.  P.  ihouglil  the  general  issue  sufficient ;  and  the  principle  upon  VV'eatlierstoa 
wliich  the  Court  deculed  tliat  the  action  woulit  not  li'-,  and  upon  which  the  (jjher  ^'-  j'i''^*''^"'S, 
casf-s  abnve  cited  were  deieriiiiiied,  strongly  supports  his  Lordship's  op  uinn.  •       !• 

The  evidence  does  not  go  meiily  to  shew  an  excuse,  but  to  prove  that  there  wascin  Herver 
no  malice  in  the  mind  of  the  defendant,  and   consequently,  that  the  publicatioa  isv.  Uowson, 
not  a  libel;  so  it   has  been  held,  that  fdirand  candid  obsi  rvHtions  on   public  per-"'  -^^  ^^-  ^• 
formauces,  [Dibdeii  v.  S~Man,  1  Eap.  '28,)  are  not  Mb--  considerol  as  libellous:  and  .,,,..  .j,j^ 
that  in  an  action  for  a  libi  I,  cha-ging  plainiirV,  a  bookseller,  with  publishing  immoral  \.^\\ \^    (jj.j. 
books,  (he  defendant  might,  undi-r  (hi  general  issi.e,   produce  such  books  to  sh^-w  riilge,  1 
that  his  own  publication  was  a  fair  stricture  on  those  of  the  plaintiff.   Tabavt  v.  Tip-  Campb.  207. 
per,  1  Camp  350. 

Till  the  point  shall  be  settled,  however,  it  will  always,  in  such  cases,  be  advisable 
for  the  deleodant  to  add  a  special  plea  to  thv-  general  issue. 

•f  This  roust  be  understood  on  the  supposition  of  the  plaintiff  being  able  (ogive 
evidence  of  it ;  for  the  report  itself  could  nut  be  produced,  nor  any  office  copy  of  it. 
Vide  ante,  124. 


4/8  Acrioxs  UPON  the  case. 

Part.  U.     But  if  it  appear  that  the  defendant  has  made  his  own   and  the 
plaintift''s  situation  a  mere  pretence  to  enable  him  to  injure  the 


plaintift"  and  has  In    reality  conducted  himself  with  malice  to- 
wards him,  this  will  form  no  defence.     And,  therefore,  where  a 
master  having  turned  away  a  servant,  went  to   another  person 
with  whom  the   servant  formerly  lived,  told  such  person  of  his 
misconduct,  and  desired  him  not  to  give  the  servant  a  charac- 
ter; and  then,  in  answer  to  an  inquiry  made  by  another  person 
to  whom  the  servant  offered  himself,  made  a  charg;e  of  miscon- 
duct  which  he  could  not  prove  ;  and  the  jury  from  this  circum- 
stance implied  malice,  and  found  a  verdict  for  the  plaintiff;  the 
jj,|,.^i^^.fg,j'^' Court  refused  to  set  it  aside.(l)     So  where  a  member  of  either 
iiPui.'587.     house  of  Parliament  makes  a  speech  in  the  house  reflecting  on 
'^^■'Resr       ^^  individual,  and  afterwards  publishes  such  speech,  such  pub- 
i.ord  Ahng.  lication  is  considered  as   a  libel ;  for,  although  what  he  says  in 
Css'. 2^6*''       his  place  is  privileged  from  further  inquiry,  yet  his   subsequent 
Hfx  X.  Cree-  act  not  falling  within  the  regular  exercise  of  his  parliamentary 
S  273^  duty  or  privileges,  is  the  same  as,  and  liable  to   all  the  conse- 

quences of,  anv  other  publication. (2) 

(5)  Fmnerty         rr,i         ^    c       y'  i  i  •!•  ... 

■o.  Tipper,  Ihe  defendant  may  also  on  the  generaUissue  prove,  in  miti- 

sCampb.  76.  gation  of  damages,  that  the  plaintiff  had  been  in  the  habit  of  li- 

(4)  Knobei  belling  the  defendant, (3)  or  such  facts  and  circumstances  as  shew 
Ev re  c  J*^ "i  ^  gi'ouid  of  suspicion,  not  amounting  to  actual  proof  of  the  guilt 
X.  P.  Sit.  of  the  plaintiff  ;(4)(i)  as  that  he  was  generally  suspected  of  the 
17Q7  \V."s.  crime  imputed  to  him,  and  on  that  account  avoided  by  those 
Appeid.  ■vvith  wliom  he  had  been  formerly  acquainted  ;(5)  but  if  he  con- 
(s)Lfl.  Lei-  tend  that  the  words  or  libel  are  true,  then  he  must  plead  a  spc- 
cesteiT  \Vai-cial  iustification,(6)  the   proof  of  which  will  lie  upon  him  ;  and 

icr,  scampi).  .         /.  ,  .,  "^  ,  ,.         1    .  t     c      .  ^        1 

251. V.   in  this  case  the  evidence  must  be  confined  to  such  facts  as  tend 

V  cT'oA'^^'    ^^  pvove  the  plaintiff's  guilt  of  the  particular  offence. (7) 

Malicious  ^^  actions  for  ma/iclous  prosecutions,  the  plaintiff  must  shew 
prosecutions,  the  prosecution  commenced  and  ended, (^•)  by  proof  of  an  exa- 
(C)  Uniler-     mined  copy  of  the  record  ;(8)  or  in   case  the  prosecution  were 

uood  V. 

Parks,  2  Stra. 

(i)  In  an  action  on  a  libel  to  which  defendant  pleads  non  ml,  and  where  there  is 

(7)  Snowden    no  justification,  he  may  give  in  evidence,  in  miligalion   of  damages,  not  only  that 

7!.  Smiih,  tliere  were  rumours  and  ivports,  of  tlie  same  tenor  as  the  libel  previously  current, 

f.'*^''^  ^"t  tli^t  the  substance  of  the  libellous  matter  had  been  published  in  the  newspapers; 

and  he  is  not  required  to  lay  a  basis  for  thisevidence,  by  producing  such  newspaper 

(5)  Clayton      on  tr.al.   irtiatt  v.  Gore,  1  Holt's  A".  P.  Rep.  290 

~j.  Nelson,  Under  the  plea  o^  non  cullo  a  narr.  for  libel,  the  plaintiff  cannot  go  into  evidence 

Bui  N.  P  13  jg  g||g^^,  (|,,,j  ,hp  allegations  in  the  libel  are  false.    Stewart  v.  LoveU,  2  Starkie's 

•See  also  Kirk    „       n^       i       i? 

-v.  French,        l^'P-  ^S.-Am.  Ed. 

1  Esp.  N.  P. 

Cas.  81.  {k)  Smith  v.  Shackleford,  1  JVott  ^  M' Cord's  Rep,  3G— Am.  Ed. 


ACTIONS  UPON  TIIK  CASE.  ^yg 

by  indictment  at  the  sessions  for  a  misdemeanor,  the  clerk  of  ch.  VI.  s. '2. 
the  neace  may  attend  with  the  original  record  ;(l)(Z)  and  thoujj-h     Wuiicious 
in  cases   of  felony,  the  officer  having  the   custody  of  records 


(1 )  Morrison 
V.  Ktlly,  I 


Jlction  for  malicious proseciUion.  Uiac.  .>83. 


(/)  If  a  man  falsely  and  mMlicinusly,  and  witlioiit  probable  cause,  sue  out  a  civil 
process  against  anollier,  although  in  regular  and  li  gal  form,  and  cause  hiin  to  he  ar- 
rested and  imprisoned,  the  former  is  answerable  in  damages  for  the  tort,  in  an  acl.ion 
for  a  false  an<l  malicious  prosecution.  IVatkins  v.  Baird,Q  ^Wass.  Rep.  500  Ileadeii 
V.  Sited,  11  Do.  500.   Vanduzon  v.  Lindennan,  10  Johns.  Rep.  106. 

Demanding  excessive  bail,  alihough  plaintiff  has  a  well  founded  cause  of  action, 
or  holding  to  bail  when  he  has  none,  if  done  for  the  purpose  of  vexation,  entitles 
the  party  aggrieved  to  an  action  for  a  malicious  prosecution.  Ray  v.  Laii<,\  Peters'' 
Rep.  210. 

But  if  bail  be  not  demanded,  no  action  lies,  however  unfounded  or  futile  the  sullf  ^ 
may  be.  ibid. 

It  lies  for  maliciously,  and  with  a  determination  to  harrass,  vex,  impoverish,  and  ' 
distress  the  plaintiff,  by  directing  the  Sheriff"  to  levy  nearly  double  the  sum  due  on* 
a  judgment  obtained  against  plaintiff",  and  causing  the  Sheriff  to  levy  on  and  sell  the 
goods  of  the  plaintiff  to  an  amount  exceeding  the  sum  due.  Sommer  v.  Wilt,  4  Sev^^ 
&  R.  Rep.  19. 

I3ut  it  cannot  be  maintained;  for  the  ordinary  costs  and  expenses  of  a  defence,  ■ 
without  an  arrest  or  special  grievance.  Potts  v.  Imlatj,  1  South.  Rep.  330.  ' 

It  lies  for   maliciously  executing  process  in  an  oppressive  manner.     Rogers  v.* 
Brexoster,  5  .Tolms.  Rep.  125.  Pitrrington  v.  Loring,  7  JVIass.  Rep.  388. 

It  lies  for  issuing  process  without  any  cause  of  action.  Stoddard  v.  Bird,  Kirb. 
Rep.  65. 

So,  for  seizing  and  detaining  plaintiff^'s  goods  and  chattels.  Yonng  v,  Gregory, 
3  CaWs  Rep.  446. 

It  will  not  lie  for  bringing  a  civil  suit,  unless  such  suit  were  malicious  and  without 
probable  cause.   White  v.  Dingiey,  4  Mass.  Rep.  433. 

T~a)o  or  more  cannot  join,  because  the  action  is  personal.  Ainsxvorth  et  al  v. 
Allen,  Kirb.  Rep.  145. 

Vide  on  this  subject,  Leavet  v.  Sheivnati,  1  Root's  Rep.  159. 

It  will  not  lie  for  one  while  attending  as  a  witness,  under  the  protection  of  a  sub- 
pccna,  though  the  debt,  for  which  the  execution  had  issued,  had  been  previously 
paid.  JVloore  v.  Chapman,  3  //.  &  JYlunf.  Rep.  2G0. 

This  action  will  lie  against  one  who  charged  the  plaintiff"  with  a  felony,  even 
(hough  the  plaintiff"  were  discharged  by  the  justice.  Secor  v.  Babcock,  2  Johns. 
Rep.  203. 

In  this  action,  it  is  not  sufficient  to  allege  that  the  defendant  did  it  -without  auy 
just  cause,  but  it  must  state  that  it  was  done  toithout  any  probable  cause.  Ellis  v, 
Thilman,  3  CaWs  Rep.  3. 

Any  prosecution,  carried  on  knowingly,  wilfully,  wantonly,  or  obstinately,  forno 
purpose  or  r-nd  of  justice,  but  merely  for  the  vexation  of  the  person  prosecuted,  is 
malicious.  Kerr  v.  Workman,  Addis.  Rep.  270. 

To  support  this  action,  the  indictment  must  have  been  prosecuted  without  pro- 
bable cause,  maliciously ,  and  the  plaintiff'  must  have  been  acquitted.  Moody  v.  Pen- 
der, 2  Jlaijiu.  Rep.  29. 

Where  on  thi-  trial  of  the  original  prosecution,  the  defendant  in  the  civil  action 
was  the  only  wiinesi,  what  he  then  swore  will  be,  ex  necessitate,  admitted  to  be 
proven  lor  him  in  the  civil  action,  ibid. 


^0  ACTIONS  UPON  TffE  CASE. 

Part  II.     would  be  guilty  of  a  breach  of  his  fiul  v,  and  culpable  in  produc- 
Miilicmus     ing  the  record,  or  givins:  conies  without  the  order  of  the  Judge, 

or  fiat  of  the  attorney-general,  and  would  not  be  compellable  to 

do  so,  yet  if  in  fact  it  is  produced,  the  Judge  cannot  reject  the 
T  loHtf*'^  evidence  for  want  of  such  order.H)  The  plaintiff  must  then 
14  East,  308.  shew  that  the  defendant  was  the  prosecutor  of  the  indictment, 
by  proof  that  he  applied  to  a  magistrate,  ito  prove  which,  all  the 
proceedings  before  him  should  be  produced  and  proved  ;_;  or  that 
he  was  otherwise  personally  active  in  the  business  ;  and  for  this 

in  an  action   for  a  malicious  prosecufion,  the  deft-nrlant  may  give  such  parol  'vi- 
dence  of  his  testimony  b^-ibre  ihi- justice  as  is  consistent  with  the  written  st:iti-raent, 
and  (Hnds  to  a  more  exact  spi  cificatioii  of  the  thing  stolen.     Walt  v.  Greenlee  et  al. 
\(^Murpltei/^s  Hep  May  Term,  1819,  '246 

'I'he  dismiss  d  '-f  a  Siatf  warrant  by  the  magistrate  who  tried  it,  \5  prima  facie 
.evidence  ot'iht  want  of  piobuble  cMUse :  and  ih.ows  upon  the  pi-osecutor  tiie  bur- 
»theti  of  proving  ihal  (here  was  probable  cause.  Joiinston  v,  JMartiii,  ibid.  248. 

To  obtain  a  copy  ot  an  indict  mem  to  groinul  an  action  for  a  malicious  prosecution, 
<the  malicf  should  appear  from  circumstances  at  the  trial  or  declarations  out  of 
•Court,  an<l  the  Juitge  should  ttstil'y  that  he  thinks  it  ought  to  be  granted.  The  Peo- 
,ple\.  Poyllon,  2  Cainen'  R  p.  202. 

•  A  certificate  may  be  given  nunc  pro  <!/nc,  although  the  Judge  who  presided  is 
,no  longer  on  llie  bench,  ibid. 

Pleadings  and  eiddence. 

In  an  action  for  a  malicious  prosi  cution,  where  the  narr.  is  for  a  vexatious  suit, 
and  holding  to  bail  in  ovf  action  only,  the  recoids  of  other  actions  brought  In  the 
same  defendant  against  the  same  plaintiff,  cannot  be  given  in  evidi  nee.  Ri:y  v.  Laiv, 
1  Peters'  Rep.  207. 

Where  the  narr.  states,  that  the  sum  demanded  as  bail  in  a  vexatious  suit,  was 
endorsed  on  the  writ,  no  other  evidence  to  establish  that  fact,  can  be  given  than  the 
endorse  ment  on  the  writ.  ibid. 

l"he  narr.  in  an  action  stated  the  writ  in  the  original  action  to  have  been  return- 
able to  March,  1809.  Under  this  count  a  record  of  an  action  returnable  to  Decem- 
ber, 1809,  cannot  be  given  in  evidence  ;  but  it  may  be  used  as  evideticc  ot  m.dice 
in  support  of  other  counts.  Munns  v.  Dupont  et  al.  C.  C.  April,  1811,  M.  S.  Rep. 

In  every  instance  in  which  double  or  treble  damages  are  given  b\  a  Statute,  such 
demand  must  be  expressly  inserted  in  the  narr.  v\hich  must  either  recite  ih'  Sta- 
tute, or  conclude  to  the  damage  of  the  plaintiff,  and  agtmst  tfieform  of  the  Statute. 
Morrison  v.  Gross,  1   Broxvne''s  Rep.  1 

The  ?iarr.  must  sb-w  the  pros  cution  at  an  end.  and  must  be  proved  as  laid. 
Thomas -v.  Be  Graffenreid,  2  \'uU&M'  Cord's  Rep.  144. 

It  must  contain  an  averment  of  the  want  ot  probable  cause.  Young  v.  Gregory^ 
3  Call's  Rep.  446. 

In  an  action  tor  a  malicious  prosecution  in  a  foreign  country,  it  is  not  indispensible 
to  produce  a  copy  of  the  record  of  the  proceedings  there,  but  the  plaintiff  may  prove 
thi  m  hv  other  evidence,  ibid. 

The  binding  over  by  a  magistrate  to  appear  at  Court,  is  sufficient  evidence  that 
there  was  probable  cause,  although  the  defendant  was  acquitted  ;  unless  he  can 
prove  that  the  prosecution  was  without  piobable  cause.  Maddox  v.  Jackson,  4 
%        Mnnf.  Rep.  462.— Am.  Ed. 


ACTIONS  UPON  THE  CASE.  4g| 

purpose  one  of  the  grand  jury  may  be  called. (l)rm)     A  person  Ch.  VI.  s.  i, 
who  acted  merely  as  a  justice  of  peace,  thoug-h  his  name  be  on    Malicious 

.*^    .  .  .  prosecutions. 

the  back  of  the  indictment  as  prosecutor,  is  not  liable  to  an  ac-  «_______ 


tion.{2)     The  plaintiff"  should   also  be   prepared   to   prove   the  (i)  s>ki8  v. 
falsehood  of  the  charge  :  and  if  the  bill  were  found  by  the  grand  '^""iJa'", 

"^  *  Si-lw.  N.  P. 

jury,  he  must  prove  that  there  was  not  the  least   cause  for  the  looi. 
prosecution. (3)(n)     This  fact  of  the  want  of  probable  cause  can-  ,„^^.  ,.    , 
not  be  inferred  trom  the  mere  proof  of  the  defendant  not  having  <■.  P.ifield, 
appeared  when  the  indictment  was  called  on,  or  of  his  having,*  Vent. -ir. 
after  commencing  the  prosecution,  declined  to  prefer  an  indict  (3)  Vide  Sa- 
ment,(4)  but  sotme  further  evideuct-  must  be  given  by  the  plain'  \^^^?^s^[  g.^fk 
tiff' before  the  defendant  is  called  on  for  his  defence  ;(5)   for  iti*-  i  i-ord 
must  be  recollected  that  the  prosecution  being  founded  on  the    ^-"^  ^' 
oath  of  the  party,  such  oath  must  be  taken  to  be  true  until  the  (i)  Waiiis 
contrary  is  proved.(6)     Where  such  oath  has  not  obtained  credit,  rctll.'p.'aoi. 
as  in  cases  where  the  bill  was  thrown  out,  it  seems  formerly  to 
have  been  considered  that  the  onus  of  proving  a  probable  cause  viHcnamLa'^* 
would  lie  on  the  defendant  ;i7)  but  in  the  later  decisions  it  has  9  East,  36i. 
been  held,  that  in  this  case  also  the  plaintiff"  must  give  some  evi-  .ti(i"c';ises 
dence  of  the  want  of  probable  cause. (8)     Malice  is  necessary  to  ^''^''^  *''^*^'^' 
support  the  action,  but  that  will  be  implied  from   the  want  offr,)Videante, 
probable  cause  ;  whereas  the  most  express  malice  will  not  pre  ^-''^'  ""^^* 
elude  the  necessity  of  proving  the  want  of  probable  cause  where  (7)  incledon 
a  bill  has  been  found. (o)     If  it  appear  from  the  evidence  offered  jJ^^p^ '2(^0 

(771)  This  action  will  lie  where  a  criminal  prosrcutioii  was  commenced,  although  Vf      . 
no  indictment  was  preferred   to  the  gramljuiy.     Shoe h  v.  J)'/' CAeiwey,  4  leases' 5  Taunt.  187. 
Rep.  507,  overruling  the  same  case  at  JVisi  Prius,  2  Do.  473. 

Sed  vide  contra.  O^DriscoU  v.  M-Biiniey,  2  JVott  &  J\I  Cord's  Rep.  54. — Am. 
Ed. 

(n)  Where  a  nolle  prosequi  is  entered  on  the  warrant  by  the  solicitor,  but  no  or- 
der of  discharge  is  obtained  from  the  CoHrt,  this  is  not  such  a  termination  of  the  pro- 
secution as  wdl  enable  the  pariy  10  maintain  an  action  for  a  malicious  prosecution. 
Smith  y.  Shackleford,  1  J^Tott  &  M  Cord^-  Rep.  30.  Et  vide  Thomas  v.  De  Graf- 
fenrrid,  '2  7>o.  143. 

A  nol.  pros,  eiili  red  on  an  indictment,  is  no  bar  to  another  indictment  for  the 
same  offence.   Common-wealth  v.  Wheeler  et  al.  2  JVlass.  Rep.  172. — Am.  Ed, 

(0)  In  Connecticut,  in  an  action  for  a  vexatious  suit,  brought  on  a  Statute  of  that 
Stat*-,  as  grounds  of  special  tiamage,  the  plaintiif  may  also  shew  his  peculiar  situa- 
tion and  circumstances,  at  the  time  such  suit  was  brought.  Jftchols  v.  Bronson, 
2  Day's  Rep.  21 1 . 

In  an  action  brought  for  a  malicious  and  groundless  action,  the  special  circum- 
stances of  malice,  oppression  and  injury,  must  be  S'-l  out  in  the  narr.  Elkintoii  ?. 
Deacon,  Penning.  Rep.  ICO.  Parker's  adms.  v.  Framb.s,  ibid.  156. 

In  an  action  (ov  false  imprisonment,  the  defendant  justified,  under  the  authority  of 
an  inferior  Court,  a  replication  that  such  Court  had  nojuiisdictioii,  would  be  insuffi- 
cient, becausi  it  doi:9  not  appear  on  th<  face  of  the  process,  and  it  would  be  too  late 
to  shew  it  by  any  evideitce  dehors  the  record,  booster  v.  Parsons,  Kirb.  Hep.  110. 

3Q  '  '  ■■ 


^ 


4SS  ACTIONS  UPON  THE  CASE. 

Parill.  by  the  plaintiff",  or  from  that  produced  by  the  defendant,  that 
prosecutions,  there  was  but  a  probable  cause  for  the  prosecution,  that  is  a  suffi- 
1  cient  defence  to  the  action.     To  increase  the  damages,  the  length 

of  imprisonment,  the  expenses  of  the  plaintiff,  and  the  circum- 
stances of  the  defendant,  are  also  proper  subjects  of  proof. 
Malicious        Xo  support  the  action    for  a  maliciovs  arrest,  the  plaintiff' 
should  prove  the  affidavit  of  the  defendant,  either  by  production 
of  the  original,  or  proof  of  an  office  copy.     The  former  seems 
(i)Cioker.   to  be  the  best  and  safest  evidence. H)     He  must  also  prove  an 
Bui.  nIp.  14.  examined  copy  of  the  writ  and  return;  and  was  required  by 
Wt-bb^T)         Lord  K.ENYON,  in  one  case,  to  produce  and  prove  the  Sheriff"'s 
Hern*,  1  Bos.  warrant  under  which  the  arrest  was  made,(2)  though  when  the 
■      defendant  is  connected  with  the  writ  by  the  affidavit   of  debt, 
(SI  Lioyi  V.   this  seems  hardly  necessary.     Having  then  proved   the  arrest, 
Cas.  174.        the  plaintiff"  must  next  prove  that  the  cause  is  ended,  either  by 
an  entry  on  the  record,  or  at  least  by  a  rule  of  Court  for  discon- 

(3)  Bristow  f  *l  r  A  /    f  *  I        v^-\       A 

V.  Haywapd.   tinuance  ot  the  action,  and  payment  of   costs  under  it.(j)     An 

4  Camp.  i2i4.  Qj.(]gj.  Qf  ^  Judge  for  that  j)urpose  dops  not  appear  to  be  suffi- 
4)KirkT-.     cient.(4)     And  in    like  manner,  where   a  commission  of  bank- 

ie"^C  80  '""Ptcy  was  ordered  by  the  Chancellor  to  be  superseded,  but  no 
writ  of  supersedeas  had   issued.  Lord  Ellenborough  held  the 

i^  Fo?ste'°"    order  not  sufficient  proof.(5)     In   this   case  also  he  must  prove 

SCamp.  60.  that  the  arrest  was  without  reasonable  or  probable  cause;  for 
the  mere  circumstances  of  it  ultimately  appearing  that  nothing 
was  due  on  a  disputed  account  is  not  sufficient ;  and  where  the 
original  cause  was  referred  to  arbitration,  and  the  arbitrator  de- 
termined on  the  examination  of  the  parties,  and  inspection  of 
their  books.  Lord  Kenyox  held  that  the   action  was^not  main- 

(6)Habers-      fiinahlp  /'fi^ 
hour-  Trob>,'^^^"^"'^'C">' 

3Esp.  38.  As  malice,  either  express  or  implied,  is  necessary  to  support 

If  an  action  ior  false  imprisonment  be  brought,  for  taking  the  plaintiff  in  execution 
on  a  case  in  which  the  costs  are  by  mistake  largt-r  than  those  actually  awarded,  the 
Court  will  give  leave  to  amend  the  execution.  Holmes  v.  Williams,  3  Cidnes' 
Rep.  98. 

The  essential  foundation  for  this  action  is,  that  the  defendant  was  prosecuted 
•without  probablf  causi'.    U'merv.  Leland,  1  Greenl   Rep.  135. 

To  support  this  action,  both  malice  and  the  want  of  probable  cattle  must  be  esta- 
blished agamst  th"  defendant.  .Munns  w  Dupont  et  al.  C.  C-  ^9/ml,\8ll,  Jif  S- 
Rep.  S.  C.  2  Bro-wne's  Rep  Afip.  42.  Lyon  v.  Fox,  J\l .  Frius,  2  Broivne's  .ipp. 
67.  Bell  V.  Gruham,  1  .Yoil  £J  M  Cord's  Rep.  278. 

The  question  oi'  miilice  is  for  the  jury  ;  probable  canse,  is  a  mixed  question  of  law 
and  fact,  and  what  circumstances  are  sufficient  to  prove  probable  cause,  are  to  be 
judged  by  the  Court.  Whither  the  cii'cnmstances whnch  amount  to  probable  cause 
are  proved,  is  for  the  jury.  Lt/itn  v.  Fox, 2  Bro-vne's  Rep.  Jlpp-  69.  V'ide  Crabtree 
V.  Ilorton,  4  Mtcnf.  Rep.  59.  Leggett  v.  Blount,  I  Tayl.  Term  Rep.  123.— Am.  Ed. 


ACTIONS  UPON  THE  CASE.  j^gg 

an  action  for  slander,  or  an  unfounded  prosecution,  so  Vifraudu-  ch,  vi.  s.  i. 
lent  intention  must  be  proved  to  support  an   action  for  a  d  ceit      ^  ';e't. 
properly  so  called.     Those  actions  which  are  founded  on  a  false  ■ 

representation  or  concealment  of  the  defects  of  any  commodity, '''^'^"'^^'^^^' 
sold  by  the  defendant  to  the  plaintiff,  have  been  before  spoken 
of.(l)(jO)     They  are  generally  considered  as  breaches  of  con- 


Action  of  deceit. 

(p)  When  a  peison  has  accepted  articles  maniifactured  for  him,  he  mav  mHihtnin 
an  aciioii  agamsl  the  manulailurt  r  lor  any  deceit  and  Iraud  in  the  wdrkinanship. 
Everttt  V,  Gray  et  al.  1  Mass.  Rep   101. 

Th.s  action  can  be  (Uiiintamed  u  lit- ther  for  thi  sale  of  provisions  or  othi-r  articles, 
in  those  cases  onlj ,  wheie  an  atlirmaiion  ur  representaiion  wilfully  false  has  been 
made  ;  or  where  some  ariifict  has  been  pi-actise<l ;  and  it  must  appear  ihat  ihe  party 
purchasing  had  been  ai-tnaily  deceived,  a'ld  had  sustaineil  a  loss  o.  damage.  £iner- 
sonetul.  V.  Biigfiam  et  al  lOjVlass.  Rep.  19". 

An  action  will  lie  for  the  advancing  money  to  a  bankrupt,  with  intent  to  en.sble 
him  to  obtain  on  a  credit,  goods  which  go  mto  the  pos^.  ssion  of  the  lender,  though 
the  plaintiff  never  had  any  view  or  even  kaow  ledge  of  the  defendant.  Wiudover  et 
al.  V.  Robbins,  2  Ty!.  Rep.  1. 

It  will  lie  for  falsely  and  deceitfully  affirming  another  to  be  a  man  of  property,  by 
which  the  plaintiff  was  induced  to  trust  him    H'ise  v.  Jiilcox,  1  Duy^s  Rep.  ^2 

An  action  on  the  case,  in  the  nature  of  deceit,  will  lit  tor  (alsc  n-pi  cstiitatjons 
by  words  and  actions,  made  by  the  defendant  with  intent  to  deceive,  vvtiercby  the 
plaintiff  sustained  damage,  though  the  defendani  had  no  interest  in  making  sucti  re- 
presentations. Hart  V.  'i'ullinudge,  i  Days  Rep.  3Sl. 

A.  applied  to  the  plainiift'to  buy  goods  on  a  credit,  who  asked  thd  def.  ndaiit  as  to 
the  soivtncy  »i  A.  the  defendani  answered,  A  was  good,  and  as  good  us  any  man 
in  the  county  for  that  sum  ;  though  he  had  at  that  time  a  jmlgnient  ajjaiisi,  anii  knew 
A.  to  be  insolvent;  the  plainiitf  iiaving  lost  his  d^bt,  brougbt  an  action  againsi  the 
deit:ai\iiati<T  falsely  and  dectitfidly  vcumnmuimg  A.;  and  it  was  held  th:it  f:aud 
or  deceit  with  damage,  furnishes  a  good  cause  of  action.  Upton  v.  Vail,  6  Johns. 
Rep.\M. 

Although  liie  affirmation  was  merely  verbal,  without  any  note  or  memorandum 
in  wiiting  between  the  partii-s.  ibid. 

Sed  quere,  Wht  tht-r  such  an  action  will  lie.   l'Vard\.  Center,  3  Do.  269 

Tht  d'  ceit  is  the  gist  of  itie  action,  and  the  plaintiff  must  provi  actual  fraud  in  the 
defendant,  or  an  inientinn  to  deceive  the  plaintiff  t))  falsf  riprt  smtati'jiis.  Young 
etui.  V.  CoveU,  8  Do.  19.     Et  vide  Barney  v.  Dewey,  13  Do.  224. 

In  the  sale  of  provisions  tor  d^'mcsiic  use,  ilie  vendor  is  bound  to  know  that  they 
are  wholesome  and  sonnd,  at  his  peril  ;  anfl  if  they  are  not,  case  lics  to  recover  da- 
mages for  the  <)eceit.   Van  Bracklin  v.  Fonda,  \2  Johns  Rep.  468. 

Where  a  contrail  of  sale  is  n  (luced  to  writiug,  you  cannot  malniaii.  an  action  onr 
an  implied  warranty,  but  must  resort  to  an  action  ol  deceit.  fVilson  \ .  Marsh, 
1  J'Jms.  Rep.  502. 

A  sp.  cial  acii'in  on  the  case  in  the  nature  of  deceit,  will  lie  for  repres>>nting  the 
Credit  and  characKr  of  a  merchant  lo  be  what  the  defendant  knew  was  fals^-,  or  for 
frauiluh  ntly  concealing  w  hai  he  ought  to  have  revealed.  Rumsey  v.  Lovell,  1  inth. 
J\'.  P.  Cas.U. 

An  action  ol  deceit  will  lie  for  deceitfully  asserting  an  unsound  mare  to  be  sound, 
and  fraudulently  encouraging  the  plaintiff  to  buy  fier.  Irxvin  v.  Slierrill,  Tayl' 
Rep.  1. 


4S4<  ACTIONS  trPON  THE  CASE. 

Part  n.  tract,  and  where  the  assertion  is  unqualified,  the  action  is  main- 

^"^'^"'  tainable,   though    the  defendant   himself  were   mistaken.     But 

~  where  a  man,  on  being  applied  to  for  information  as  to  the  cir- 


Whether  an  action  on  the  case  for  a  Hect-it,  be  maintainable  on  a  parol _/a/*e 
affirmation  or  repress  ntrtti'm,  as  to  ihe  credit  and  responsibility  of  a  third  person, 
whereby  the  plaintiff  was  indtlci d  to  trust  him>  in  consequence  of  which  he  suffered 
a  loss;  and  wlietli-  r  fiaud  or  an  intention  to  deceive  the  pKintiff,  on  the  part  of  the 
defendant,  or  collusion  b"tween  the  defendant  and  such  third  person  must  be 
proved  ?  Ward  v.  Center,  3  Johns.  Rep.  269. 

AVhelher  there  be  fiaud  or  not,  is  a  matter  of  fact,  and  the  jury  will  decide,  ibid. 

An  action  ot  deceit  will  not  lie  against  the  plaintiff  for  affirming  hiniselt  to  be  a 
"tnan  of  property,  when  h  ■  really  was  insolvent.  Fisher  v.  Broxon,  I  Tyl   Rep.  387. 

No  action  will  lie  against  the  vendor  of  real  estate,  for  false  and  fraudulent  re- 
presentations as  to  ihv  c|ualit\  and  situati"n  of  1  md,  both  of  which  are  open  to  view, 
and  might  be  seen.    Sherwood  v.  Salmon,  2  Dat/^s  Rep.  128. 

In  an  action  on  llu-  case  in  the  nature  of  deceit,  an  express  allegation  that  the 
plaintiff  nindi- the  affirmation /life^/^yra/w/Kfe/i/^!/,  or  k)iowingly  is  not  necessary; 
it  is  sufficient,  espieiall\  alter  v*  i-dici,  if  (he  declaration  in  its  concluding  part  say, 
"  atid  so  by  reason  oj  thi'  said  affirmation,  the  plaintiff  xuas  fahely  and  fraudulently 
deceived.''''  Bayard  v.  JIalcolm  el  al.  2  Johns.  Rep.  550.  S.  C.  I  Johns.  Rep,  453. 
Sell  vide  Jiacon  %.  Iiroxvn,3  Bibb's  Rep.  35.   Smith  v.  Miller,  2  Do.  618. 

Id  an  action  for  a  deceit  in  selling  to  the  plaintiff,  for  a  valuable  consideration, 
land  »liich  had  no  i-xistence,  it  is  immat<M'ial  whether  any  and  what  covenants  are 
mentioned  in  the  deed.  The  purchas>-r  defrauded  has  a  right  to  treat  the  deed  as 
a  nullitv,  atid  may  mamtain  an  action  on  the  case  for  the  deceit.  Wardellv.  Fos- 
dick  et  al  13  Jolms.  Rep.  325. 

For  a  fraU'hdent  representation  of  a  privilege  annexed  to  land,  vide  Morrell  etal. 
V.  CoWen,  13  Do.  395. 

In  an  action  on  a  deceit  for  an  e.\change  of  horses,  the  plaintiff  alleging  a  war- 
ranty of  Eonndness  on  the  part  of  the  defendant,  the  defendant  may  shew  by  evi- 
dence that  the  horse  received  by  him  was  also  unsound.  M-Lene  v.  Fullerton,  4 
Yeates'  Rep.  522. 

Passing  a  note  to  A.  who  cannot  read,  and  assuring  him  that  B.  is  security  upon 
it,  when  he  is  not  so,  will  sustain  an  action.  Decker  v.  Hardin,  2  South.  Rep.  579. 
Meeker  v.  Potter,  ibid  5S6. 

An  action  of  deceit  will  lie  against  an  infant  on  a  warranty  for  the  sale  of  a  horse  ; 
and  even  where  the  form  of  action  is  ex  contractu,  and  the  substance  ex  delicto, 
the  defence  of  infancy  w  ill  not  avail.   TFord  v.  Vance,  1  JVo«  &  M'  Cord's  Rep.  197. 

Whenever  in  an  intercourse  between  two  persons  relative  to  property,  one  con- 
ceals a  material  fact,  which  he  alone  has  had  an  opportunity  of  knowing,  and  which 
he  is  boun<l  in  cnscience  to  disclose,  and  such  concealment  occasions  a  loss  or  in- 
jury to  the  other  party,  he  is  entitled  to  recover  an  indemnity.  The  JVewburyport 
Mar.  Ins.  Co.  v.  Oliver  et  al.  8  Muss.  Rep.  402. 

If  an  action  in  the  nature  of  o  writ  of  conspiracy  be  brought  against  two  persons, 
and  one  is  acquitted,  and  the  other  is  found  guilty,  judgment  shall  be  entered  against 
that  one,  and  the  acquittal  of  the  other  fo'ms  no  ground  for  a  new  trial,  or  in  arrest 
ofjudgment.  Ea^on  v.  IVestbrooh,  1  Tayl.  Term  Rep  267. 

In  an  action  for  a  deceit  in  selling  an  unsound  horse,  the  narr.  should  allege,  ei- 
ther that  the  vendor  falsely  and  fraudulently  represented  the  horse  sound,  or  that 
he  knew  him  to  be  unsound,  and  represented  him  sound.  Baldwin  v.  West,  HoT' 
din's  Rep.  50. 

If  a  representation  be  fair  and  honest  as  to  the  belief  of  a  person  making  it,  anH 


ACTIONS  UPON  THE  CASE.  4.35 

cumstances  of  another,  and  the  safety  of  trusting  him,  says  that  cii.  VI.  s.  1. 
he  is  a  man  of  credit,  and  one  who  may  safely  be  trusted  ;  and      D«-cnt. 
it  afterwards  turns  out,   that   tlie  person  of  wliom  he  so   spoke 
■was  at  that  time  a  man  of  no  property;  no  action  is  maintain- 
able on  this  false  assertion,  unless  it  be  proved  that  the  defend- 
ant knew  at  the  time  he  made  it,  that  he  was  giving  a  false  cha- 
racter of  the  person  respectino;  whom  inquiry  was  made.(l)  Even  0)  Pasley  v. 
where  the  defendant,  on   repeated  applications  being  made  tos  t.  Re|..  51. 
him,  said  that,  io  his  own  knowledge,{2)  the  third  person  was  ^g^lj^'v  Pu? 
lady  of  considerable  fortune,  and  of  larger  expectations,  whereas  367. 
it  turned  out  that  she  was  a  mere  swindler  ;  yet  as  the  defendant,2>|^^  ^^j^C^ 
really  believed  the  representations  which  she  had  made  to  him, 7^.  Ciensy. 
and  had  been  himself  duped  by  the  appearance  she  made  in  the      ■*' '   "' 
world,  the  action  was  held  not  to  be  maintainable  ;  for  the  as- 
sertion of  knowledge,  when    taken  with  reference  to  the  credit 
and  circumstances  of  another,  means  nothing  more  than  a  strong 
belief  founded  on  reasonable  and  probable  grounds. 

•without  concPHlment,  such  a  person  would  not  be  liable.  Barker  v.  Sutherland, 
Addis.  Rep.  123. 

In  an  action  ot"  deceit,  the  defendant  may  give  in  evidence,  his  own  character. 
Rumsey  et  al  v.  Lovell,  1  Jinth.  J^.  P.  Cas.  17. 

A.  being  a  man  of  resi)Oiisibility,  borrowed  of  £.  his  brother  in  law,  a  sum  of 
money,  anil  as  securilv,  conveyed  to  him  by  an  absolute  deed,  a  valuable  real  estate, 
■which,  accoi  ding  to  the  understanding  of  bolh  was  lo  be  re-conveyed  on  the  pay- 
ment of  the  irioney  borrowed.  C  and  D.  formed  a  conspiracy  as;ainst  A  to  ruin 
hira  in  business  ;  and  in  pursuance  of  such  conspiracy,  applied  to  him  and  proposed 
to  lend  a  further  sum,  of  which  he  was  in  want,  to  pay  JS's  debt,  and  to  hold  the 
conveyed  properly  as  security  for  both  sums.  They  then  wi  nt  to  B.  and  falsely 
and  fraudulently  told  him  that  lliey  had  made  the  proposed  advances  to  A.  in  con- 
sefjuence  nf  which,  B.  conveyed  the  rial  estate  to  them.  They  then  represented 
to  the  creditors  ni  A-  that  he  was  a  bankrupt,  and  advised  them  to  attach  his  pro- 
perty, in  consequence  of  which  his  ruin  was  accomplished.  It  was  held  (hat  A. 
could  recover  against  C.  and  D.  in  an  action  on  the  case.  Bidkley  v.  Storer,2 
Day's  Hep.  5.31. 

In  an  action  nf  ileceit  in  the  nature  of  a  conspiracy ,  the  acts  and  declarations  of  an 
9\\^^fi\  particeps  in  the  fraud,  cannot  bf  admitted  in  evidence  to  the  jiu-y,  until  a 
privily  between  liim  and  the  defendant  isfirst  shewn  tolhc  satisfaction  of  theCourt; 
but  when  such  privit)  is  proved,  the  most  liberal  latitude  will  be  allowed  in  shewing  the 
conduct  and  confessions  ol  \htt  particeps.  ll'indover  et  al.  v.  Bobbins,  2  Tyl.  Rep.  1, 

In  an  action  for  a  conspiracy  to  deceive,  by  representing  A  to  be  a  man  of  pro- 
perty who  was  in  fact  a  bankrupt,  evidence,  that  the  def  ndants  made  such  repre- 
sentations to  other  persons  than  the  plainlitf,  in  consequence  of  which,  such  persons, 
without  the  request  nf  the  deft-ndants  recommended  A.  to  the  plaintiff,  whereby 
the  plaintiff"  was  induced  to  give  him  credit,  is  admissible.  Gardner  v.  Preston,  '-i 
Day's  Rep.  205. 

As  to  the  eff<  ct  of  a  Utter  of  credit,  in  fivour  of  third  persons  against  the  writer. 
Vide  Ekldoives  et  al.  v.  JVieU,  4  Da/l.  Rep.  133.  Latirason  v.  Mason,  3  Crafich's 
Rep  493.  Robins  \.  Binc^ham,  4,  Johns.  Rep.  i7C).  Rogers  et  al.  v.  tVarner  et  af. 
«  Do.  92.— Am.  En. 


486  ACTIONS  UPON  THE  CASK. 


SECTION  n. 

Jictions  founded  in  neglis^ence. 

T'nrt  II.  We  had  occasion  in  the  last  section  to  observe,  that  in  those 

Sect.  2.      cases  where  a  man   officiously  intermeddles  with  the  character 

JiJc!;|:gf  nee.  .     •' 

___^______  or  circumstances  of  his  neij^hbour,  the  law  implies  malice,  and 

that  the  omts  is  cast  on  him  to  prove  his  innocence  ;  while,  on 
9     the  other  hand,  when  he  appears  to  have   acted  in  the  regular 
course  of  business,  as  in  answering  an  inquiry  which  has  been 
made  by  a  third  person,  or  the  like,  it  is  incumbent  on  the  party 
complaining  to  give  express  evidence  of  malice.     The  same  prin- 
ciple applies  to   those  actions  which  are  founded  in  negligence. 
If  one  man  keep  a  lion,  a  bear,  or  any  other  wild  and  ferocious 
animal,  and   such  animal   escape  from  his  confinement,  and  do 
mischief  to  another,  the  owner  is  liable  to  make  satisfaction  for 
the  mischief  so  done,  without  further  evidence  of  negligence  in 
him  ;  for  every  person  who  keeps  such  noxious  and  useless  ani- 
(i)2L(].        vaah  must  keep  them  at  his  peril.(l}     On  the  contrary,  if  a  man 
liaym.  1583.   has  a  dog,  a  bull,  or  any  other  domestic  animal,  such  as  are  usu- 
ally kept,  and  are,  indeed,  necessary  to  the  existence  of  man; 
no  action  is  maintainable  for  any  damage  done  by  such  animal, 
without  proof  that  the  owner  knew  that  he  was  accustomed  to 
do  mischief;  for  without  such  knowledge,  no  negligence  or  fault 
(2)  Ibid.         is  imputable  to   the  defendant.(2)     In  this  case,  therefore,  the 
T "ni'"r  S  .Ik  plaintifl"  must  not  only  prove  the  damage  which  he  has  sustained, 
fi62.  1  L>i(l    but  he  must  also  prove  that  the  animal  had  before  done  mischief, 
S.'c?  ^'^'^  that  the  defendant,  having  knowledge  of  that  fact,  permitted 

him  to  go  about ;  for  merely  keeping  him  in  his  own  yard,  for 
the  protection  of  his  premises,  in  the  night,  though  not  chained, 
(3)Brnckr.  will  not  subject  him  to  an  action. (3)  But  when  it  is  proved 
1  Esp.  203.  that  the  animal  had  once  done  mischief  of  any  kind,  and  that 
the  owner,  after  knowledge  thereof,  permitted  him  to  go  at 
large ;  he  will  be  answerable  for  all  otlier  damages  done  by  him, 
though  of  a  different   kind   from  that  which  he  had  before  com- 

(4)  12  Mod.    mitted  ;(4)   and,  therefore,  where  a  dog  accustomed   to  ^orry 
^^^'  sheep  was  permitted  to  go  at  large,  and  afterwards  bit  a  horse, 

(5)  1  L(l.        the  owner  was  held  to  be  liable. l5)     So,  the  first  fault  being  in 
liAym.  no,    ^j^g  owner,  in  permitting  the  animal  to  be  at  large  after  he  knew 

of  his  mischievous  disposition,  he  will   be  equally  liable  to  the 
action,  though,  in  the  particular  instance,  the  party  injured  has 


ACTIOlSrS  UPON  THE  CASE.  43^ 

been  negligent  or  impiudent,(«/)     Thus,  where  a  person  trod  Ch  VI.  s. '2. 
upon  a  (lt;o-  wliich  was  lying  at   the  owner's  door,  and    the  dog  ^''S''g*^"'^'^- 
bit  him  in  consequence,  yet  it  being  proved,  ihat  the  owner  knew  •-^^— — 
he  was  accustomed  to  bite,  the  action  was  held  to  be  maintain. 
able.(l)     And,  in  a  late  case,  where  a  dog  having  been  bitten (1)  Smith  r. 
by  one  that  was  mad,  the  owner  fastened  him  up,  and  a  child  ^jj-^  ' "'  ""• 
coming  near  him  irritated  him  with  a  stick,  upon  which  the  dog 
flew  at  and  bit  him,  in   consequence  whereof  the  child  had  the 
hydrophobia  and  died  ;  Lord  Kenyon  held,  that  the  father  might 
maintain  an  action  against  the  owner  for  the  expenses  of  the 
apothecary  ;  because  it  was  the  duty  of  the  owner  to  have  de- 
stroyed the  dog  immediately  that  he  knew  him  to  be  in  danger 
of  so  fatal  a  malady,  or  at  least  to  have  kept  him  in  a  place  where 
he  could  not  by  possibility  have  done  mischief.(2)  (2)  .rones  r. 

In  these  cases  there  was  great   negligence  in  the  defendant,  2p'p'(^ys." 
but  where  an  action  was  brought  for  an  obstruction  in  the  high- 482,  S.C. 
way,  by  reason  whereof  the   plaintiff's   horse   fell   and   he  was 
hurt,  it  appearing  that  the  plaintiff  was  riding  with  great  vio- 
lence, and  might  have  avoided   the   obstruction  with   common 
prudence,  the  action  was  determined  to  be  not  maintainable  ;(3)  (•'^)'^"^'f,''* 
and  in  another  action   of  the  like  nature,  where   the  plaintiff's  ivst  r,  11 
gig  was  overturned  by  reason  of  his  horse  taking  fright  at  some'^''^''' 
rubbish  laid  in  the  road  by  the  defendant's  workmen,  but  it  ap- 
peared that  the  plaintiff  himself  managed  the  horse  unskilfully 
a  similar  decision  was  made  by  the  Court.(4)  (4)  Flower 

The  case  of  the  unruly  horse,  which,  being  driven  in  Lincoln's-  Taunt.  314. 
inn-fields  for  the  purpose  of  breaking,  got  loose  and  struck  the 
plaintiff,  was  determined  on  the  same  principle  ;  the  action  v/as 
holden  to  be  maintainable,  because  there  was  a  degree  of  negli- 
gence in  attempting  to  break  a  young  horse  in  so  public  a  place;(5)  (5)  Michel 
but  had  it  not  been  for  this  negligence  the  action  could  not  have  2 Yev^iTs.' 
been  supported  ;  and  therefore,  if  a  ship  be  navigating  a  public  1  Vent.  295. 
river,  or  a  carriage  travelling  on  a   public  road,  and  notwith- 

[ij]  Any  person  isjustifi'-d  in  killing;  a  ferocious  and  datigtrous  clog,  which  is  per- 
mitted to  run  ul  large  by  its  owner,  or  escapes  through  nesjlij^i'nt  keeping,  the  ow- 
ner having  notici;  of  its  vicious  <lisi)Osition.    Putnuin  v.  Puiine,  i5  Johns.  Hep.  312. 

Any  one  is  justified  in  killing  a  dog  which  has  been  bitten  by  another  mad  animal. 
ibid. 

Querp,  Whether  that  would  be  a  justification  for  killing  more  useful  and  less 
dangerous  animals,  i/dd. 

Trespass  vi  et  armis  will  lie  for  killing  a  dog  set  to  mind  property,  if  there  be  no 
justifiable  cause.   liowers  v.  Fitzrundoiljh.  Jlddis.  HeJ).  215. 

B'Jt  where  the  ilog  was  a  nuisance,  and  had  bitten  the  defendant,  the  HW  will  al- 
low him  to  kill  the  dog.  ibid. — Am.  Ed. 


4SS  ACTIONS  UPON  THE  CASE. 

Part  II.  standing  all  due  care  and  attention  in  the  person  steering  the 
^.gifgfiice.  gi^ip^  yj.  driving  the  carriage,  it  runs  against  another  and  does 
"~  damage,  no  action  lies  against  the  owner.    In  these  cases,  there- 

fore, it  is  incumbent  on  the  plaintiff  to  shew  negligence  in  the 
defendant  or  other  person  under  whose  care  or  conduct  his  ship 
or  carriage  was. 

Horses  and  carriages  being  generally  trusted  to  the  care  of  a 

servant,  the  very  possession  of  them  by  such  servant  is  evidence 

that  they  were  about  the  business  of  the  master,  and  makes  him 

liable  to  an  action   for  any  injury  arising  by  the   negligence  of 

(i)lbKl.         j^jg  servant.(l)     But  this  is   not  conclusive  upon  the  defendant, 

for  if  he  prove  that  the  horse  or  carriage  was  taken  out  of  the 

stable  by  the  servant  in  defiance  of  his  orders  to  the  contrary, 

this  evidence  shewing  that  the  servant  was  not  then  in  the  due 

employment  of  his  master,  discharges  the  master  from  the  ge- 

(2)Semb.  perneral  liability  for  the  acts  of  the  servant ;( 2)  and  in  like  man- 

3  T.  Rei).       ner,  where  a  servant,  driving  his  master's  carriage,  in  which  no 

76'^.  person  was,  wilfully  and  maliciously  drove  against  the  carriage 

of  another,  it  was  held,  that  the  master  was  not  liable  for  this 

wilful  act  of  his  servant,  as  he  would  have  been  for  any  act  of 

negligence    or  unskilfulness    in  the   regular  discharge  of   his 

(3)  M'Maniisduty  ;(3)  and   even  where  a  master  of  a  ship  was  on  board  at 
1  Ea'sr'lOG      ^'^^  ^''"^  ^"  iiyu'T  ^^'^s  done  to  another  ship  by  the  wilful  mis- 
conduct of  a  sailor,  it  was  held  that  he  was  not  answerable,f4)(r) 

(4)  Bowclier 

V.  Noiilstroii     ■ 

(r)  An  action  will  not  lie  agbinsl  the  master  of  a  vessel,  for  running  his  vessel 
against,  and  injuring  another,  the  defenclant  himself  being  on  shore,  and  a  pilot  on 
board.  Snell  et  al.  v.  Rich,  1  Juhns,  litp.  305. 

Qiiere,  VVIiether  the  owners  of  a  sli.|)  are  liable  for  the  conduct  of  a  pilot,  ibid. 

Trespass  and  not  case  is  thi-  proper  actio'i  to  recover  ilaraages  for  an  injury  sus- 
tained by  the  n>-gligent  driving  of  the  defendant's  horse.  JValdron  v.  Hopper,  1 
Coxe's  lifp.  539. 

It  is  proper  against  the  master  of  a  vessel  for  running  through  a  fishing  net.  Po$l 
V.  Munn,  1  South.  Hep.  01. 

\Wi.  sets  Sre  to  his  fallow  land,  as  he  is  a  right  to  do,  which  communicates  to, 
and  fires  the  wooilland  of  his  neighbour,  no  action  lies  against  A.  unless  there  was 
some  negligence  or  niisconiluci  in  him  or  his  servant.  Clark  v.  Foot,  8  Johns.  Rep.. 
329. 

One  hired  to  drive  horses,  is  liable  only  for  negligence,  unskilfulness,  or  wilful 
misconduct,  the  burtht-n  of  proving  which  lies  on  the  driver.  JVewtony.  Pope,  1 
Co-wen's  Rep.  109.— Am.  Ed. 


ACTIONS  UPON  THE  CASE.  ^.gg 


SECTION  III. 


Actions  for  disturbance^  8fc, 


In  actions  for  disturbances  and   nuisances,  the  plaintiff  must  Ch.  VI.  s.  3. 

slurb.'ince 
nuisance. 


prove  his  possession  of  the  land  or  house  which  has  been  injured,  j^„,, 


and  carry  his  evidence  of  the  state  and  situation  of  the  premises,  ,^ 

and  the  enjoyment  of  the   right,   as  far  back  as  possible  ;(.s)  for  (i)  Lcais  zj. 
in  cases  where  there  is  no  actual  grant,  usage  and  prescription  ^'?'^'  *^T* 
must  settle  the  right  of  the  parties.''^  W-ircestf-p 

In  general  the  proof  of  twenty  years  undisputed  enjoyment ^^'' ^^^j^^^' 
of  commons,   lights,   pews,  ways,   or  other   easements   appurte- «is<>  2  Will. 
nantCl)  to  a  house  or  land,  and  in  some  cases  a  much  less  time,   ■"'"         '*' 
will  be  sufficient  to  raise  the  presumption  of  a  prescription  or  2)  Darwin 
grant  ;(2)*  and  if  A  being  possessed  of  two  houses,  sell  one  to'wul'-^aJnj^ 

175,<l.  nnd 

sevi  ral  other 

(s)  Some  actions  which  would  otherwise  be  niiis;)nc('S,  may  be  justified  by  neces- cases  there 
sity.     Thusa  man  may  throw  wood  ii.to  the  sti-cet  tor  the  purpose  ot  having  it  c;ir- *^'^'^"* 
ried  into  his  house,  and  it  mav  lie  there  a  leasonabl^  time.    Commonweallh  v.  Pass- 
more,  I  Serg.  &  R.  Rep.  '■Zi? 

An  indictment  lor  a  nuisance,  in  obstructing  an  ancient  water  coupsp,  whereby 
a  public  hii^hway  was  ov  rflowed  and  spoiled,  need  not  slate  how  far  in  length  or 
breadth  the  water  stood  on  the  roail    RespubHca\.  Arnold,  3  Yeutes'  Rep.  417, 

So,  for  erecting  a  wliarfon  the  public  piopei  tv,  the  derMidant  was  not  allowed  to 
go  into  tvideiice,  to  prove  that  'he  matter  complaini-d  of  was  beneficial  to  the  pub- 
lic. Ibid.  V.  Caldwell,  1  DalL  R-p.  150. 

All  action  on  the  case  lies  agmtist  him  who  ei'  cts,  and  who  continues  a  nuisance 
erected  by  ani'ther.  Staple  v.  Spring  et  ul.  10  .lliiss.  Rep.  72. 

Where  a  public  way  is  uiiK.wfully  tbstructed,  any  individual,  who  has  occasion  to 
use  it  ill  M  lawful  way,  may  remove  the  obstruct  inn,  and  he  may  entfr  upon  the 
land  of  the  party  erecting  or  coniinuint;  the  obstruct  iniij  for  the  purpose  of  removing 
it,  doing  as  little  damage  as  possible  to  the  soil  ir  the  buildings.  The  Inhabitants 
ofAnmdel  v.  JJ/'  Culloch,  10  Jiass,  Rep.  70. 

To  support  an  action  on  the  case  for  damages  occasioned  by  a  common  nuisance, 
it  \:  not  neccssaiy  that  the  il:image  sustain'  d,  should  have  been  direct ;  it  is  enougli 
if  It  was  conseq>ientiul.  Hughes  v.  fleis-r,  I  Binn.  Rep.  463. 

In  an  action  for  a  i>uisanco  i>y  overflow ing  the  plainliff's  lauds,  the  daraagt-s  ought  to 
be  comp -tfiit  lor  the  demoli'io'i  of  the  thing  erected  that  occasions  the  nuisance  ; 
sometimes  the  profits  of  such  erections  are  of  great  value,  when  the  object  of  the 
law  can  only  be  obtained  b\  damng'-s  equivalent  to  the  profits  gained  by  the  erec- 
tioi>,  or  by  damag'  s  to  such  an  amount  as  will  render  those  profits  not  worth  pur- 
suing.  Bradley  v.  Jlmis,  2  Ilayio    Rep.  399. — Am.  En. 

(0  A  ight  of  w»>  iria\  he  b\  g-arii  or  prescription,  and  convenience  gives  no 
right.   Seohrooks.  King,  1  JVotl  & M' Cord's  Rep   140— Am.  Ed. 

•  In  Bealey  v.  Slimu.  fi  Ea'<t,  214-,  Lord   ELiENBHiott;!!  said,  thit  twenty  years 
exclusive  enj'.ytment  of  water,  in  any  particular  manner,  aifurds  a  couclusive  pre- 
3  R 


^9Q  ACTIONS  UPON  TUt  CASE 

Part.  II.      B.  and  the  other  to  C.  one  purchaser  cannot  so  alter  his  house 

Disturbance 
and  nuisance. 


Disturbance  ^^  ^^  obstruct  the  windovvs  of  the  other,  however  recently  they 


(1)  Drnm 
moiid  II.  Uo- 


may  have  been  opened. (1) 


^'tj  '  sumption  of  right  in  the  party  so  enjoying  it.  But  less  than  twenty  years  enjoyment 
Sitl.'at  Wist- ""*)'>**'■  ""**)'  ""t'  aftbrii  such  a  presumption,  according  as  it  is  attended  with  cir- 
minster,  after  cunisttinct-s  to  support  or  rebut  the  right.  In  that  case,  the  persons  under  v  horn 
Easter  T.  32  the  defendants  claimed,  had  eighty  years  since  erected  a  mill  on  th^r  lands,  and 
Ijeo.  3.  made  a  weir   to  divert  water  to  it  out  of  the  river  Irwell,  which  weir  had  been  at 

Teh-  -ds  '  different  times  before  1787,  •  nlarged,  and  thereby  a  greater  quantity  of  water  di- 
1  Price.  27.  verted  from  the  river.  In  1787,  the  plaintiff  built  a  mill  lower  in  the  stream,  which 
was  supplied  by  the  water  not  then  takun  by  the  defendants  weir,  and  the  plaintiff 
continued  to  enjoy  this  surplus  water  until  1791,  when  the  defendants  enlarged  their 
wtir  and  made  other  works  on  the  river,  whereby  they  took  all  the  water  from  the 
plaintiff's  mill.  The  Court  held  the  action  maintainable;  and  Mr.  J.  Le  BlaKC 
said,  the  true  rule  is,  that  if  after  the  erection  of  works,  and  the  appropriation  by 
the  owner  of  the  land  of  a  certain  quantity  of  water  flowing  over  it,  the  proprietor 
of  other  lands  lakes  what  remains  of  the  water  before  unappropriated,  the  first  men- 
tioned owner,  however  he  might  before  such  second  appropriation  have  taken  to 
himself  so  much  more,  cannot  do  so  afterwards. 

So  where  a  building  used  as  a  malt-house,  and  having  lights  sufficient  for  that 
purpose,  was  converted  into  a  dwelling-house,  and  soon  afterwards  a  building  was 
erected  which  darkened  the  windows,  Lord  Chief  Baron  Macbonajjd  left  it  to  the 
jury  whether  there  was  sufficient  light  for  a  malt-house,  saying,  that  no  man  could 
bv  his  own  act  suddenly  impose  a  new  restriction  on  his  neighbour.  ^Martin  v.  Ga- 
ble, 1  Camp.  jV.  P.  Can.  3'^3. 

Another  most  important  case  has  lately  come  before  the  Court,  on  the  subject  of 
water.  The  plaintiff  being  entitled  to  a  fishery  in  the  v\\ev  Ribble  ;  and  the  defend- 
ant and  his  predecessors,  proprietors  of  a  mill  there,  having,  till  within  the  last  forty 
years,  had  a  brushwood  weir  across  the  river,  near  their  mill,  at  which  weir  they 
had  for  two  hundred  years  past  exercised  the  right  of  taking  the  fish  ;  in  the  year 
1766,  the  then  owner  of  the  mill  erected  a  solid  stone  weir  two-thirds  across  the 
I'iver,  in  lieu  of  the  former  brushwood,  leaving  the  other  third  of  the  weir  composed 
of  the  same  materials  as  belore.  No  objection  was  made  to  this  alteration,  and  the 
weir  continued  in  that  state  till  1784,  when  the  remainder  of  the  brushwood  was  re- 
moved by  the  defendant,  and  the  stone  weir  carrieil  quite  across  the  river.  The 
weir  was  a  solid  piece  of  masonry,  having  three  locks  as  the  former  wooden  weir 
had,  for  the  puipos'-  of  catching  fish  ;  but  it  appeared  that  since  it  had  been  com- 
pleted, v^  ry  lew  fish  could  pass,  so  as  to  be  taken  in  that  part  of  the  river  where  the 
plaintiff's  fishery  was.  The  action  was  brought  within  three  months  before  the  ex- 
piration of  twenty  years  trora  the  last  alteration.  The  jury,  under  the  direction  of 
the  Judge,  had  found  a  verdict  for  the  defendant ;  the  Judge  conceiving,  that  though 
this  was  originally  a  nuisance  to  the  plaintiff's  fishery,  yet  the  length  of  time  which 
had  been  suff  red  to  elapse,  had  established  the  right  of  the  defendant.  The  Court, 
on  a  motion  for  a  new  trial,  determined  that  the  direction  of  the  Judge  was  wrong; 
Lord  ELLENBOKoutiH  observing,  that  by  MaguH  Charta,  and  other  Acts  of  Parlia- 
ment, i.hi-  ei.ction  of  weirs  in  rivers  was  a  public  nuisance;  that  ho-vever  twenty 
years  aapaesceiice  might  bind  parties  -where  privute  rights  only  are  affected,  yet 
the  public  have  an  inttrest  in  the  suppression  of  public  nuisances,  though  of  longer 
standing. \    No  objection  however  of  this  sort,  bis  Lordship  said,  could  apply  to 

f  A  man  has  a  right  to  use  the  water  which  flows  through  his  land,  but  not  tc 
divert  it  to  the  prejudice  o  lothers.  Merritt  ?.  Parker,  I  Coxe^s  Rep.  460. 


ACTIONS  UPON  THE  CASE.  ^g£ 

In  the  same  manner  as  twenty  years  undisputed  enjoyment  ch.  vi.  s.  s. 
will  sive  the  right,  the   same  length  of  adverse  possession  will  D'sturhance 

*  o     '  o  •    ■       II  •   1        ^"''  nuisance. 

SO  far  destroy  it  as  to   prevent  the  person   originally  entitled  _____^_ 


this  case,  when  the  action  was  commenced  within  twenty  years  after  the  complete 
extension  of  the  stone  weir  across  the  civer,  by  which  it  was  proved  that  the  plain- 
tiff had  been  injured.  Wildv.  Hornby,  7  East,  195.  In  Vooght\.  Winch, 'i  B.  & 
Jl,  662,  the  Court  held,  that  even  twenty  years  possession  of  water  at  a  given  height  > 
was  not  conclusive  in  the  case  of  a  navigable  river. 


An  action  will  not  lie  for  diverting  the  water  of  a  river  from  its  usu.il  course  by 
erecting  a  nnll  dam  above  the  mill  dam  of  another,  if  sufficient  water  be  left  to  work 
the  lower  mill,  though  in  consequence  of  such  erection  it  be  necessary  to  run  the 
mill  dam  of  the  lower  mills  further  into  the  stream,  and  the<liRiciiltv  ofgetting  logs 
to  the  lower  mills  be  increased  so  much  as  to  require  oni^  hand  more  for  twenty- 
five  logs.  Palmer  et  al.  v.  Mulligan  et  al  3  Caines'  Rep.  307  Et  vide  Sacknder  et 
al.  v.  Beers  et  al.  10  Johns.  Rep.  241 .  Merritt  et  al.  v.  Rnickerhoff  et  al.  17  Do.  306. 

It  is  a  common  principle  of  the  civil  and  of  the  common  law,  that  the  proprietor 
of  land,  unless  restrained  by  covenant  or  custom,  has  the  entire  dominion  not  only 
of  the  soil,  but  of  the  space  above,  and  bi.-low  the  surface,  to  any  extent  he  may 
choose  to  occupy  it ;  provided  he  so  use  his  own,  as  not  to  injure  the  property,  or 
impair  any  existing  rights  of  another.  Thurston  v.  Hancock  et  al.  12  Jilass.  Rep.  220. 

Where  persons  have  an  equal  right  to  erect  mill  dams  on  a  river,  the  rubbish 
which  comes  from  a  newly  erected  upper  dam  to  an  old  lower  dam,  though  it  be  an 
inconvenience  to  the  lower  dam  of  about  two  hundred  and  fifty  dollars  a  year,  will 
be  dcunnum  absque  injuria,  if  a  jury  have  found  in  favour  of  a  defendant,  and  it  ap- 
pear the  floating  rubbish  of  the  defendant  be  lessened  by  the  erection  of  the  upper 
dam.  ibid. 

A.  granted  eighty-six  acres  of  land  to  B.  reserving  the  streams  of  water  and  the 
soil  under  them,  with  the  right  of  erecting  mill  dams,  and  all  such  part  of  the  land 
as  shall  be  ovei flowed  by  water,  for  the  use  of  mills  for  the  grantor,  and  B.  sold 
forty  acres  of  the  premises  to  C.  with  the  like  exceptions,  and  C.  erected  a  dam  on 
his  part  of  the  land,  by  which  the  land  of  B.  was  overflowed,  it  was  held  until  »?. 
exercised  his  right  and  erected  dams,  the  reservation  was  inoperative,  and  if  consi- 
dered strictly  as  an  exception,  would  be  void  for  uncertainty.  Thompson  v.  GrC' 
gory,  4  Johns   Rep.  81. 

Where  a  couipan>  is  authorised  by  an  Act  of  the  Legislattire  to  cut  a  c^hhI,  no 
action  will  lie  against  them  by  the  owner  of  the  land,  throu.t;h  or  near  which  the 
canal  is  cut,  for  injuries  to  his  land,  arising  necessarily  from  the  act  of  making  ii,  or 
from  its  contiguity  ;  the  defendants  having  proceeded  aecording  to  the  directions  of 
the  Legislature ;  but  they  ai  e  liable  onlj  for  such  damages  as  results  from  their  ne- 
glect in  keeping  the  canals  and  embankments  in  repair.  Steel  v.  Western  Inland 
JsTavigation  Co.  2  Johns.  Rep.  283. 

A  previous  occupancy  ol  land  on  a  stream  of  water,  and  the  appropriation  of  the 
wai'-r  tor  the  purposes  of  a  mill,  does  not  give  such  a  right  to  the  stream,  in  its 
whole  extent  above,  as  to  control  the  use  of  tUe  w:tter,  so  as  to  prevent  anv  subse- 
quent occupant  from  using  or  detaining  the  water,  to  the  injury  or  preju'lite  of  the 
first  occupant;  it  not  appearing  that  the  plamtiff  had  been  so  long  in  the  previous 
use  and  enjoyment  ot  the  stream,  as  to  afford  a  presuuiitioii  ot  a  t;rant  of 'he  same 
beyond  the  bounds  ot  his  own  land.   Piatt  v.  Johnson  et  al.  15  Johns.  Reft.  "213. 

Evtry  man  bus  a  ri^ht  to  erect  a  mill  upon  his  own  land,  ami  to  use  'he  water 
passing  through  his  land  as  he  pleates,  provided  that  his  mill  is  not  so  constructed 


400 


^ng  ACTIONS  UPON  THE  CASE. 

Part.  II.     from  abating  the  nuisance,  or  maintaining  a  possessory  action 

Disturbance  ft,,,  erecting  it ;  and   therefoie,  where  a  common   has   been  ad- 
an<i  luiisHtirf.  o       '       ^ 
versely  possessed  in  severalty  by  an  inclosure  during  that  time,(l) 

fl")  Havvkc     or  the  grantee  of  a  market(i2)  permits  another  person    to   erect 

V.  Bacon,       another  market  in  his  neighbourhood  without  objection,  and  such 

2  Taunt.  156  ,         •  •  .  r       x  xi  ^i 

new  market  is  enjoyed  lor  twenty  years,  neither  the  commoner 
(2)  Flolcnift    jjijj,  ^||g  owner  of  the  market  will,  after  that  time,  be  permitted 

•J-    Ho  I.  I  .  .         .  . 

Bos  &  Pul.    to  abate  the  nuisance  or  maintain  an  action  on  the  case  for  the 
invasion  of  his  right. (w) 

When  the  right  is  claimed  by  prescription,  (and  it  is  only  in 
the  case  of  copyholds  that  it  can  be  claimed  by  custom,)  the 
evidence  must  go  to  shew  the  exercise  of  the  right  by  the  occu- 
pier of  tlie  particular  land  to  which  it  is  said  to  be  appurtenant, 

atid  eniployti  as  to  iijurt-  liis  neighbour's  mill,  and  thit  after  using  the  water,  he 
re'urns  the  stream  in  its  ancient  channel.  Beissell  v.  Shall,  4  Dall.  Rep.  211. 

Wlitpf-  the  pl-.tintiffclainned  tiie  piivilege  of  a  water  course,  which  the  defendant 
had  lexHtioiisly  imiieded,  the  Court  ilirecied  the  jury  to  give  large  damages,  the 
ph'inliff's  counsel  agreeing  10  rel-as'  tlieni  in  cnse  the  p  ivjiege  was  duly  secured  by 
deed.  Clyde  v.  Chide,  1  Yeatea'  Rep  9-2  ^inon.  4  Dall.  Rep.  l47.  S.  C.  by  name 
of  JValker  v.  Bntz,  I  YecUes'  Rep.  574. 

"Where  A.  had  a  lulling  indl  (in  ihe  same  stream  with,  and  above  B''s  grist  mill 
and  »4's  mill  had  bi  en  erected  ami  in  opi-ration  for  more  than  twenty  years  after 
^'s  mill  was  built,  it  was  h'ld  that  A^s  uninterrupted  eujojment  of  the  stream 
above,  for  that  b-ngib  of  time,  li:id  given  him  such  a  right  to  thi  wjiter,  thai  B. 
could  not  raise  his  dam,  and  ih  reliy  throw  back  the  water  upon  A''s  wheel.  Sher- 
wood V.  Burr  et  al.  4  J)ay'.i  Rep   244. 

A  man  ownmg  a  elose  b"Uiide(l  on  an  iincient  brook,  may  lawfully  use  the  water 
thereof  for  the  purpose  of  husbandrj,  as  watering  his  cattle,  or  irrigating  his  close  . 
and  he  may  do  ibis,  either  by  dipping  water  from  the  brook, and  pouiing  it  upon  his 
land,  or  by  making  small  Sluices  tor  the  same  purpose  ;  and  if  the  owner  of  a  close 
be  damaged  thereby,  it  is  ilummim  absque  injuria,  and  no  action  lies.  fVestony. 
Mien,  &  Muss.  Rep.  136. 

In  an  action  for  obstructing  a  water  course  by  which  the  plaintifT's  meadow  was 
wa'ereil,  it  appeared  the  det'endaiit  had  purchased  a  mill  with  notice  that  the  vendor 
ha'i  before  sold  the  meadow  in  question  to  the  plaintiff,  covenanting  that  the  plaintifT 
migiit  use  iht:  water  over  and  abo^^e  wliat  was  necessary  for  the  mill  ;  the  plaintiff 
ob'-lructed  the  water  course  ;  ih.^  Court  recommended  the  defendant  to  secure  to 
the  plaintiff  b)  deed  the  enf>  uffnient  of  the  water  course,  which  he  refused;  the 
plaintiff  bduiid  ninisclf  to  relense  anv  damages  given  if  the  defendant  should  execute 
such  a  deed,  Mud  tiie  jury  thereupon,  with  the  advice  of  the  Court,  found  damages  to 
the  full  value  of  the  land.  Anon.  4  Dall.  147. 

B)  a  sal  of  mills,  the  water  of  the  race  will  pass  ;  if  the  water  in  the  stream  be 
owned  by  ten  p'-rsous  vihose  lands  are  on  opposite  sides,  and  they  agree  to  erect 
mills  on  the  lands  of  one,  and  turn  the  whole  stream  to  the  mills;  it  is  an  appro- 
priation of  the  water  of  the  mills,  and  a  release  of  one  tenant  in  the  mill  will  pass 
his  I  ight  in  the  water  also.  Wetmure  v.  White  et  al.  2  J\l .  York  Cas.  in  Er  87.—" 
Am.  Ed. 

(m)  Thurston  v.  Hancock,  12  Mass.  Rep,  220.  Story  v.  Odin,  ibid.  157.— 
Am.  Ed. 


ACTIONS  UPON  THE  CASE.  ^J,y3 

for  evidence  that  all  the  tenants  of  a  manor  have  enjoyed  it,  is,  ch.  vi.  s.  3. 
in  such  case,  not  admissible.d)     And  we  have  before  seen,(2)  D;s<u';bance 

'  .  .      .  ami  nuisance. 

that  in  these  cases  of  mere  private  prescription   no  evidence  of  _^__^___ 
reputation  is  received. (.r)     But  when  to  a  plea  of  a  prescriptive  ^j\  vviiso..  v. 
right  of  comman,  the  plaintiff  replied   another  prescription   to '^^k*^.  *  t^sp. 
use  the  locus  in  quo  for  tillage  with  corn,  and  until  the  carrying 
to  hold  and  enjoy  the  land,  the  Court  held  that  many  other  per-l^)  Ante,  28. 
sons  having  a  right  of  common  on  the  close,  evidence  of  repu- 
tation, might  be  received  of  the  plaintiff's  right,  a  foundation 
being  first  laid  by  proof  of  the  enjoyment  of  it.(3)  (3)  Weeks  r. 

The  plaintiff  must  also  shew  that  the  right   is  to  the  extent'^''^'  579 
claimed.     A  person  who  has  a   right  of  way  to  his  own   close '^1H»'^"<'"' '• 
cannot,  when   he  purchases  a  close  beyond  it,  use  the  way  for 
the  purpose  of  going  over  his  own  close  and  thence  to  the  land 
newly  purchased  ;(4)  and  if  the  usage  has  only  been  to  go  with  (*)  Liushifm 
carts  and  horses,  this  will  not,  on  an  application  of  the  land  toLmw.  111 
other  purposes,  necessarily  entitle   the  party  to  drive  horned 
cattle  through  it,  though  it  may  be  evidence  of  such  a  right,  if 
fortified  by  other  circumstances.(5)(2/)  (3)  Ballard  v. 

The  defendant,  in   answer  to  this,  may  shew  that  the  enjoy- ■j-^^'^j'g^g, 
ment  was  by  the  connivance  or  consent  of  one  who  had  only  a 
temporary  interest  in  the  estate,  out  of  which   the  easement  is 
claimed ;  and  this  will  avoid  the  right  which  would  otherwise 
arise  from  the  usage.     Thus,  if  a  tenant  for  life  or  years  permit 
a  stranger  to  use  a  way,  &c.  through  a  close,  this  will  give   no 
title  whatever,  as  against  the  remainder  man,  who  ought  not  to 
be  bound   by  his  fraud  or  laches. (6)     So  if  the  usage  has  been  ;0)  Bradbury 
merely  by  favour,  and  acknowledg»>d  as  such  ;  as  if  a  small  '"ent-^wi.  Saand. 
has  been  paid  to  the  defendant  for  it ;  or  he  has  locked  the  gates  '"'^.d.  Vide 
when  he  thought  proper,  and   kept  tiie  key  ;  or  done  any  other  vviis-.n. 
act  which  shews  that  the  plaintiff  did   not  claim  it  as  a  right,  it?  E.<si.  294. 
wdl  be  proper  evidence,  on  the  part  of  the  defendant,  to  coun- North,  11 
teract  the  effect  which  the  usage  unexplained  would  produce.      t,»st,  272, 

In  these  cases  the  plaintiff  is  not  obliged  to  prove  any  specific 
injury  to  himself;  that  he  has  a  right,  and  that  such  right  has 
been  wilfully  invaded  by  the  defendant,  is  sufficient;  for  if  he 
were  to  wait  until  he  could  prove  actual  damage,  the  defendant 

(x)  In  general,  tlv  presumption  of  a  grant  is  limited  lo  periods  an'-i)  igou-s  to  tliose 
of  ihr  Statut  ot  L  m  t  nioris,  in  cases  whu-e  ihe  Statute  does  not  ^'Pl'')'-  JHcard  v. 
Williaim  et  al.  7  WUeut.  Ktf)   59. — Am.  Eo. 

{y)  Where  Ian<l  ia  granliil  with  a  right  of  way,  ihe  riglit  is  appurii-tiant  to  every 
parlol  the  liiiid,  and  ihr  grantee  of  any  -art,  no  inaUer  how  smull,  is  entitled  to  it, 
Watson  V.  Biuren,  1  Scrg.  ^  It.  Rep.  227.— Am.  Eu. 


494 


T'al t  II. 

Disfurbance 

and  nuisance. 


(l)WfIls7'. 

Wallin?,  2 
Black.  1233. 
Hfibson  T. 
Todd,  4  T. 
Rep.  71. 

(2)  Ibid. 

(3)  Pinder  v. 
Wadsworth, 
2  East,  154. 

(4)  Per  dul- 
ler J   4T. 
Rep.  73. 


(5)  Carter  v. 

Miircot, 

4  Burr,  2162. 


(6)  Mayor  of 
Oiloid  V. 
Ricliaidson, 
4T.  Rep.  437. 

(7)  Patrick  x\ 
Gi(-eriway, 

1  Williams's 
Saund'-rs, 
[.346,  b  ] 


ACTIONS  UPON  THE  CASE, 

by  repeated  invasions  of  a  right,  wliich  can  only  depend  on 
usage,  might  himself  gain  a  title  which  could  not  afterwards  be 
successfully  opposed. (1)  In  actions,  tlierefore,  by  a  commoner 
against  a  stranger,  proof  of  the  plaintift"'s  right  of  common,  and 
that  the  defendant's  cattle  were  turned  thereon  by  him,  2)  or 
that  he  took  the  dung  away, (3)  is  sufficient;  but  if  the  action  be 
brought  against  the  lord,  or  a  third  person,  who  puts  cattle  on 
the  common  by  his  license,  the  plaintiff  must  also  prove  a  spe- 
cific injur}^  as  that  there  was  not  sufficient  common  left  ;  at 
least,  if  the  defendant  prove  the  contrary,  it  will  be  an  answer 
to  the  action. (4) 

There  is  one  case  where,  though  the  form  of  action  is  trespass, 
yet  the  proof  will  be  the  same,  and  governed  by  the  same  rules, 
as  the  above  actions  on  the  case  ;  that  is,  the  case  of  a  fishery. 
Prima  facie  the  right  of  the  fishery  will  be  in  the  owner  of  the 
soil  ;(2)  and,  therefore,  the  first  point  will  be,  to  prove  property 
in  it;  this,  in  cases  of  rivers  not  navigable,  is  in  the  owners  of 
the  land  on  each  side,  to  the  middle  of  the  river  ;(5)  but  in  na- 
vigable rivers  and  arms  of  the  sea,  the  presumptim  is  that  the 
soil  is  in  the  crown,  and  that  every  subject  of  the  realm  has  a 
right  to  fish.  In  both  cases,  however,  the  prima  facie  right  may 
be  rebutted,  and  a  person  not  the  owner  of  the  soil  in  the  one 
case,  or  an  individual  in  the  other,  may  have  the  fishery  by  pre- 
scription ;(6)  and  as  usage  is  so  important,  proof,  of  an  attempt 
to  catch  fish,  though  unsuccessful,  will  be  sufficient  evidence  in 
an  action  for  disturbance  in  a  several  fishery.(7) 


(;)  The  owners  of  lands  on  the  banks  of  the  Susqrtehannn  have  no  exclusive 
right  at  common  law,  or  by  grant  from  the  proprietaries,  to  fish  in  the  river  imme- 
diately in  front  of  their  lands,  but  the  right  lo  fisheries  In  that  river,  is  vested  in  the 
State,  and  common  to  all.   Carson  v.  Blazer  et  al.  2  Binn.  Rep.  475. 

TheLegislatvire  have  the  right  to  regulate  the  taking  of  fish  within  the  State,  and 
to  oblige  all  persons  to  conform  to  the  regulations  by  inflicting  penalties  for  the  vio- 
lation of  them.  Bunihum  v.  Webster,  5  Jfass.  Rep.  266.  JVtckerson  v.  Brackett, 
10  Do.  212. 

By  the  principles  of  the  common  law,  a  town  has  no  right  of  property  in  a  fishery 
within  its  limits,  but  thi-  property  is  in  (he  public.  The  Inhabitants  of  Randolph  v. 
The  Inhabitu7its  of  Braintree,  4  Mass.  Rep,  315.  C'JoUdge  v.  tVilUams,  ibid. 
140.— Am.  Ei). 


(  495  ) 


CHAP.  VII. 


OF  THE  EVIDENCE  IN  THE    ACTION  OF  TROVER. 

There  is  another  action  on  the  case,  which,  being  governed  factions  of 
by  a  rule  of  pleading  not  admitted  in  the  former,  I  sliall  men-      trover. 
tion  in  a  distinct  chapter.     In  the  action  of  trover,  the  plaintiff  — — — 
does  not  truly  state  his  case,  but  is  permitted  to  use  a  fiction^ 
and  to  say  that  he  lost  the  goods,  the  value  of  which  he  seeks 
to  recover ;  and  that  the  defendannt  found  them  and  converted 
them  to  his  own  use. 

The  general  issue  not  guilty  is  the  plea  also  used  in  this  ac- 
tion, but  nevertheless,  the  plaintiff  is  not  put  to   prove  the  tor- 
mal  and  fictitious  part  of  his  case.     He  must  prove  either  a  ge- 
neral and  absolute  property,  and  right  of  possession,  at  the  time 
of  the  conversion,  (in  which  case  he  is  not  obliged  to  prove  any 
actual  possession  of  the  goods,  for  the  legal  possession  follows 
the   property  ;)(!)  or  else  he  must  shew  that  he  has  a  special  ( 0  ^al.  N. 
property  which  renders  him  answerable  to  the  true  owner;  and  Rep.  ij. 
that  at  the   time  they  came  into  the  defendant's  hands,  he  had    -.t.  ,  ^^ 
also  the  actual  possession  of  them.(2)(a)  p.  33. 


Trover. 

(a)  It  cinnot  be  maintained  but  by  him  who  has  a  property  in  the  goods,  either 
general  or  specinl.  Waterman  v.  Jtobinson,  5  JUass.  Hep.  303.  Lttddin  y.Leavett, 
9  Do.  104.  Warren  v.  Lelmid,  ibid.  '205.  Jlotchkiss  v.  jyPVickar,  12  Johns.  Hep. 
403. 

Or  hf  must  have  the  actual  possession  or  the  light  to  immediate  possession.  Jlfa- 
ther  V.  Trinity  Church,  3  Serg.  &  R.  Hep.  509.  Thorp  v.  Burling  et  al.  II  Johns. 
Rep.  285.  Birdetal.  v.  Hempstead,  3  Darfs  Hep.  27-2. 

An  aclministrator  may  maintain  trover  lor  the  conversion  of  the  intestate's  goods 
in  his  life-time.  Foivle  adm.  v.  Lovtt,  6  Jifass.  Rep.  394. 

Where  a  special  property  is  sufficient,  vide  Kinder  et  al.  v.  Shaw  et  al.  2  Mass. 
Rfp  398.  CaUhvellw  Eaton,  i  Do  399..  Floyd  \.  Day,  3  Do.  403.  Ludderv. 
Leavitt,9  Do  104.  Gibbsy.  Chase,  10  Do.  125.  Thorp  \.  Burling,  \l  Johns. 
Rrp.  285.  Schcrmerhorn  V.  Fan  Vallcenburgh,ibid  52'J. 

Wher<'  goo<ls  are  seized  by  vii-tue  ot  kgul  process,  and  are  in  the  custody  of  the 
law,  trover  will  lie  for  them.  Jenner  v.  JolUffe,  9  .Tohns.  Rep.  381. 

It  lies  for  wild  geese  which  h.ue  been  tamed  and  have  strayed  away,  but  without 
regaining  their  n.tural  liberty.  .Jmory  v.  Flyn,  10  Johns.  Rep.  102. 

In  an  aci'on  of  trover,  the  plaiuliff  must  shew  property  in  himself.  Slielden  v.  So- 
per,  li  Johns.  Hep.  352. 


496  TROVEK. 

Part  II.  But  a  person  who  has  not  the  right  to  the  immediate  posses- 

Aeiioisof    gjf,^   {jjj^  j,„iy  jj  leversionarv  interest,  cannot  maintain  the  ac- 

t  rover.  _  •'  •'  ' 

tion  ;  and  therefore  a  man  who  has  let  his  house  ready  furnished. 


Trovei  will  lie  for  titli'  deeds.    Weiscr  v.  Zdslnger,  2  Yfntfs''  Rep.  537. 

A  joint  owner  intitlid  to  exclusive  possessioo,  may  sui-  wlone.  Thompson  v.  Cook, 
2  South.  Rep.  580. 

It  lies  for  cutting  and  carrying  away  corn  standing  and  growing.  JVdson  v.  Burt, 
15  Muss.  Rep.  204. 

It  cannot  be  maintained  on  the  possession  of  a  chattel,  where  it  appears  the  legal 
title  is  in  another,  and  the  plaihiifT  has  only  a  trust.  Luspeyre\.  M^Farland,  1 
Tayl.  Term.  Rep.  1 87. 

But  it  may  wh'  re  one  has  ilie  absolute  right,  although  he  never  had  actual  posses- 
sion. M'Culla  V.  Bullock,  2  Bibb's  Rep.  'i88 

This  actifui  will  lie  for  property  tt  ndered  on  a  note,  in  favour  of  the  promissee,  if 
the  tender  were  legal.  Rixv.  Strovg,  1  Roofs  Rep.  55. 

It  will  lie  against  the  drawer  nf  a  note  which  he  got  up  through  the  fraud  of  a 
third  person.  J\~ettleto!i  v.  Rigg^s,  ibid.  I'iS. 

It  will  lie  when  bioi'ghl  by  the  rightful  owner  of  public  securities,  though  they 
have  been  delivered  up  upon  a  I'oiged  order.   Griswold  v.  Jndit,  ibid.  221. 

A  purchaser  of  one,  who  has  a  special  propertv,  may  maintain  trover  against  all 
the  w(jrld,  <  xeepi  the  right  owner.  Hughes  v.  Giles,  1  Uayiv.  Rep.  26. 

A  right  of  privilege  in  a  cargo  does  not  give  such  an  interest  as  will  enable  the 
purchaser  of  ii  to  maintain  trover,  if  the  c'msign<-e  has  not  consented  to  the  selec- 
tion of  those  parts  which  are  purchasi  4I    Heyl  v.  Burling,  1   Caines''  Rep.  14. 
J   This  action  will  nni  lie  for  money  wlilch  is  the  medium  of  commerce.  Rapaljie  et 
al.  V.  Emory,  2  Dull.  Rep.  51. 

Whether  it  will  lie  for  a  ship  and  cargo  taken  on  the  Mgh  seas?  Taxier  et  alv. 
Svieet  et  al.  ibid.  81. 

Where  a  note  is  paid  to  one  of  the  payees,  and  a  receipt  in  full  given  by  one  of 
them,  it  was  h<  Id  to  be  a  thing  of  no  value  for  which  an  action  of  trover  would  not 
lie.  Todd  v.  Crookshanks,  S  Johns.  Rep.  427 

But  it  will  lie  for  a  note  in  the  hands  of  m  third  person,  ibid. 

In  some  cases,  troverh  alone  the  proprr  action,  in  some  trespass,  Sin6  in  other 
cases  trover  or  trespass  may  be  brought  indifferently,  and  in  thes  cases  an  action 
of  trover  may  be  brought  where  trespass  woulil  have  hiin,  but  is  laired  by  the  Sta- 
tute of  Liniiiat'oiis,  which  does  not  include  actions  of  trover.  Fej'riss  v  Ferriss, 
1  Root's  Rep.  365. 

An  action  of /rover  waves  the  trespass  in  taking,  admits  the  possession  to  have  been 
lawfully  gotten,  and  proceeds  to  recover  damages  for  the  unlawful  conversion  ;  but 
in  trespass,  damagi  s  may  be  given  for  the  taking.  JIall  v.  Moor,  JldiUs.  Rep.  376, 

Quere,  Which  is  the  proper  action,  to  be  brought  by  the  owner,  for  the  taking 
gOOf's  (;ut  of  the  hands  of  a  third  person,  ihid. 

In  trover,  the  plaintiffmust  shew  propertv  in  himself.  Sheldon  v.  Soper,  14  Johns. 
Rep.  352.     Et  vide  Carter  v.  Simpson,  7  Do.  535. 

A  fiindaraetital  distinction  hfiwi-vn  trover  »u(i  trestiass  is,  the  one  is  founded  on 
property,  the  oiher  011  possession,  hincc  a  recoverv  in  trrner  ves's  the  pr  pert-,  sued 
for  in  the  defendant.  Roller's  adms.  v.  Skull,  Tayl,  Rep.  152.  S.  C.  2  JJayiv. 
Rep.  139. 

A  recovery  in  trespass  is  no  bar  to  an  action  of  trover,  unless  the  property  have 
come  into  quest'on,  and  been  decided  upon.  ibid.  Sed  lonira,  Johnson  et  al.  v.  Pac- 
ker, 1  JVott  £5?  M'  Cord's  Rep.  1 . 

When  it  is  said  possession  alone  will  give  a  sufficient  right  to  maintaia  trover 


TROVER.  4Q^ 

er  hired  his  goods  to  another  able  to  contract  for  them,  cannot     Ch.  Vii. 

\ctious  of" 
trover. 


maintain    this  action    against  a  third    person   who  seizes  the    A'="o"«o' 


goods  ;(1)  but  where  the  person  to  whom  the  goods  were  let  was 
a  married  woman  living  separate  from  her  husband,  and  there- (i)  Borden  v. 
fore  unable  to  gain  any  property  in  them,  it  was  held  that  such  u"''"''^'  ^T- 
a  bailment  did  not  deprive  the  real  owner  of  his  action  of  tro-T>.  Dor,  i  t. 
ver.,2)  ^'^-  "• 

The  plaintiff  must  then  prove  a  conversion  by  the  defendant.  (2)  Smith  t). 
If  it  appear  that  the  defendant  gained  the  possession  of  the  15  E^gt'^'goz 
goods  by  force,(3)  or  that,  being  entrusted  with  them,  he  actu- 
ally converted  them  to   his  ov/n  use;  as  if  a  carrier  draw  out^  c^j'g  5" 

part  of  the  liquor  in  a  vessel,  this  is  of  itself  sufficient,  and  no  i^"''-  '^^'^^ 

.  ,  .  B.  N.  P.  44. 

further  evidence  is   necessary  ;(4)  but  in  general  where  goods 

come  into  a  man's  hands  by  finding  or  delivery,  it  is  necessary!*)  ^"^^^''?" 

that  a  demand  of  them  by  the  plaintiff,  and  a  refusal  to  deliver  son.  1  Stra. 

them  by  the  defendant,  should  be  proved  to  sliew  a  conversions,^,  ^"'®    i 

by  him.     This  refusal  is  always  evidence  of  a  conversion,  unless  Ogden,Cro.'- 

El    21Q 

explained  by  the  defendant  ;(5)  but  a  refusal  by  a  mere  servant    " 

or  agent,  without  the  special  directions   of  the   defendant,  will  (5)  B.  N.  P. 

not  make  him  liable. (6)(6) 


(6)  Pothoniei" 
V.  Dawson, 


against  ail  persons  except  the  rightful  owner,  it  means  a  possession  accompanied  1  Holt.  384. 
with  a  gent  ral  or  special  properly,  whether  by  finding  or  a  bailment  from  the  true 
owner,  ibid. 

In  an  action  of  trover,  interest  on  the  value  of  the  chattels  from  tlie  time  of  con  ver- 
sion may  be  alloweil  by  way  of  damages.  IVilson  et  ul.\.  Conine,  2  Johns.  Hep.  280. 

In  an  action  of  trover,  the  value  of  the  property,  and  compensation  from  the  time  of 
demand,  must  be  the  measure  of  damages.     Buford  v.  Fan7ien,  1  Bay's  Hep.  273. 

The  measure  of  damages  is  the  value  of  the  goods  at  the  time  and  place  of  con- 
version. Kennedy  v.  Strong,  li  Johns.  Hep.  128.  Baldwin's  adm.  v.  JVlunro  et  al, 
Anth.  JV.  P.  156.  Jacoby  et  al.  v.  Laussatt,  6  Serg.  &  R.  Rep.  300.  LUlardv. 
Whitaker,  3  Bibb's  Rep.  92. 

The  measure  of  damages,  in  trover,  for  a  note  is  its  nominal  value,  unless  that  be 
reduced  by  shewing  payment  or  the  insolvency  of  the  maker  or  some  facts  to  inva- 
lidate the  note.  Ingallsv,  Lord,\.  Coiven's  Rep.'Z¥3. 

Trover  for  fraudulently  obtaining  goods,  vide  Wood-worth  v.  Kissam,  15  Johis. 
Rep.  186. 

In  an  action  of  trover,  the  declaration  need  not  state  the  price  of  the  things  con- 
verted, although  it  is  otherwise  in  detinue.  Pcarpoint  v.  Henry,  2  Wash.  Rep.  248. 

If  after  a  bailntent  of  goods  they  are  unlawfully  converted  or  detained,  detinue 
or  trover,  and  not  replevin,  is  the  proper  remedy.  JSleany  v.  Read,  1  Mason's 
Rep.  319. 

In  detinue,  the  plaintiff  must  prove  property  in  himself,  and  possession  in  the  de- 
fendant. Burnley  \  Lambert,  1  Wash.  Rep.  398  Merrits.  Warmouth,  I  ffayw. 
Rep.  12.  Flo-wers  v.  Glasgow,  ibid.  122.  Le7ins  v.  Williams,  ibid.  150.  Arnold -f. 
Bell,  ibid.  396.  Walker's  adms.  v.  Hawkins,  ibid.  398.— Am.  Ed. 

Conversion. 

(i)  Where  one  hires  a  horse  to  go  to  a  ecrlain  place,  and  he  goes  beyond  that 
3  S 


498  TROVER. 

Pail  H.  The  deferiilant  may,  on  the  general  issue,  controvert  theplain- 

trover*^     tiiT's  property,  by  shewing  a  better  title  in  himself,  or  in  some 

■  person  on  whose  behalf  he  defends  ;(c)  but  if  the  plaintiff  had  the 

(1) Armory     possession,  a  mere  stranger  cannot  object  to  his  want  of  title; 

tj  Deiainiiie,  and,  therefore,  it  is  no  defence  to  prove  that  the  plaintiff  only 

found  the  property  ;(1)  or  was  himself  an  uncertificated  bank- 

|i!ace,  he  is  liable  in  trover  {or  an  unlawful  conversion  of  the  horse.    TVheelock  \ . 
jyiwelroight,  5  Mass.  Rep.  104. 

The  Htlniissioii  of  defendant  that  he  had  the  goods  and  has  lost  them,  is  sufficient 
f '   evidence  of  conversion  to  maiDtain  an  action  of  trover.  Laplace  v.  Aupoix,  I  Johns 
Cas.  406. 

A  demand  of  payment  or  satisfaction  generally  for  the  goods,  is  sufficient  in  such 
a  case.  ibid. 

A  refusal  to  deliver  up  goods,  is  evidence  of  conversion.  f^Judah  et  al.  v.  Kemp,  S 
•  Johns.  Cas.  411. 

But  though  demand  and  refusal  be  evidence  of  conversion,  yet  if  a  conversion  caa 
be  proved  in  any  other  way,  it  will  not  be  necessary,  Horsejields.  Cost,Jlddis. 
Rep.  152. 

But  a  demand  of  a  horse  from  the  wife  or  servant  of  the  defendant,  and  a  refusab 
•will  be  no  evidence  of  a  conversion.  Storm  v.  Livingston,  6  Johns.  Rep.  44. 

There  must  be  a  conversion  proved  before  the  commencement  of  the  action  ;  a 
sale  afterwards  by  the  defendant,  will  not  avail,  ibid. 

Where  the  defendant  promised  to  return  the  goods  to  the  plaintiff,  and  has  not 
done  it,  is  sufficient  evidence  of  a  conversion.  Durell  v.  Jllosliev,  8  Johns.  Rep.  347. 

If  a  factor  pledges  the  goods  of  his  principal,  it  is  a  conversion.  Kennedy  v.  Strong 
14  Johns.  Rep   128. 

A  tortious  taking  is,  in  itself,  a  conversion,  and  no  subsequent  demand  is  necessary 
in  order  to  maintain  an  action  of  trover.  Furrington  et  al.  v.  Payne,  15  Johns. 
Hep.  431. 

If  one  have  goods  in  his  possession  belonging  to  the  estate  ot  an  insolvent,  refuse 
to  di.live'-  them  up,  on  being  demanded  by  the  assignees  of  the  insolvent,  alleging 
that  he  has  a  lien  on  them  for  a  debt  due  to  him  by  the  insolvent,  it  is  a  sufficient 
evidence  of  a  conversion  to  support  an  action  of  trover.  Jacoby  et  al.  v.  Lanssatt. 
6  Serg.  &  R.  Rep-  300. 

One  who  receives  goods  to  keep,  and  re-deliver  to  the  owner,  but  delivers  them 
\'.  over  to  a  third  person,  or  suffers  him  to  take  them,  is  guilty  of  a  conversion.  Lock- 
"'    -ivood  V.  Bulli,  1   Coiueri's  Rep.  322. 

Demand  and  refusal  are  j!)r2nia/ti«'e  evidence  of  conversion,  ibid. — Am.  Ed. 

(c)  Storage  of  goods  need  not  be  tendered  by  the  owner  wiien  the  storer  appears 
resolved  to  dispute  the  right  of  possession  on  a  different  ground.  Murray  v.  Roose- 
velt, 1  Anth.  A"  P.  Cos.  73. 

So  where  the  captain  of  a  vessel  refused  to  deliver  up  goods,  assigning  as  a  reason 
that  he  was  ordered  by  the  ship  owners  so  to  do,  and  made  no  objection  to  the  ten- 
der of  the  freight,  but  whether  enough  was  tendered  did  not  appear,  it  was  held 
the  captain  iiad  waved  any  tender  of  freight.  Jndah  et  al.  v.  Kemp,  2  Johns.  Cas. 
411. 

Under  the  general  issue  the  defendant  may  shew,  in  justification,  a  right  of  entry 
for  rent  arrear,  under  which  he  entered,  distreined  and  sold.  Kline  v.  Husted,  S 
Caines'  Rep.  275. 

He  may  shew  a  paramount  title  in  a  third  person,  without  connecting  himself 
with  that  person,  in  th-  s^me  manner  as  an  outstanding  title  is  a  good  defence  in 
ejectment.  Sclifrmerhornv.  Van  Volkenburgh,  11  Johns.  Rep.  5Q'J.  Kennedy  r 
Strong,  14  Do.  12S.  Rolan  v.  Fletchei;  15  Do.  207.— A?r,  Ed, 


TROVER.  4gg 

rupt,  at  the  time  of  the  conversion  ;(1)  or  purchased  of  one  who     Cli.  VII. 

was  so  ;(2)  for,  as  against  every  person  but  the  real  owner,  the    ■^j^over"^ 

possessor  has  a  good  title.     So  the  defendant  may  rebut  the  evi-  _______^ 

dence  of  conversion,  arising  from  demand  and  refusal,  by  proving  ,^^  ^^Ych\,  v 

that  he  or  the  person,  on  whose  behalf  he  acts,  has  a  lien  on  theFos,  7  T. 

goods  for  a  sum  of  money,  and  that  the  defendant  offered  to  de-p.'i^i.'r  ^' 

liver  up  the  goods,  on   payment  of  it,  for  until  the  lien  is  dis-l^"*".  'Bos. 

charged,  he  is  not  obliged   to  part  with  the  goods  ;(3)(rf)  and, 

therefore,  in  such  case  the  plaintiff  must  prove  a  tender  of  the  \^)  J^**^*"''^ 

money  due.     But  if  the  defendant,  on  the  demand  being  made,  Peak.'s  N.p. 

claim  to  retain  them  on  a  different  ground,  making  no  mention^'"'-  ^^'^• 

of  the  lien,  he  cannot  afterwards  object  that  the  money  due  to  (3)  Skinner 

him  was  not  tendered. (4)     The  defendant  may  also  shew  that!j  jj^'^'j^^'^ 

the  goods  being  fairly  in  his  possession  were  accidentally  lost,75.i. 

as  if  goods  are  stolen  from  a  carrier,  or  he  otherwise  lose  them  ;Q,',gg^a^',, 

for  the  action  is  founded  on  a  wrongful   conversion  by  the  de-  Ibid.  86r. 

fendant,  and  not  on   mere  negligence;  to  recover  a  satisfaction (4)  geard- 

for  which  the  plaintiff"  must  resort  to  a  special   action   on  the  T!!"^ ""-, 

^  '  bill,  1  Campb. 

case.(5)(e)  4io. 

The  defendant  may  also,  on   the  general  issue,  prove  that  he  ,     ^ 

is  tenant  in  common,  or  joint-tenant,  with  the  plaintiff';(6}  and.i-.hnson, 

this  will  be  a  defence,   unless  the  plaintiff  prove  that  the  de-  «  N 'p  44*' 

fendant  has  actually  destroyed   the  goods.     If  one  of  several  45. 

joint-tenants,  or  tenants  in  common,  bring  the  action  against  a^p,)  jj  t^  p 

stranger,  this,  though  it  may  lessen  the  damages  to  the  amount  ■'•i- -^5.  Brown 

of  the  plaintiff's  share  on   the  general  issue,(J)  will  not  defeat  Saik.°29o!' 

the  action,  unless  pleaded  in  abatement.(/) 

35. 

{d)  The  right  to  retain  goofis  for  freight,  grows  out  of  the  usagf  of  trade  ;  and 
does  not  exist  wh.  re  the  pariit-s  have,  by  their  agreement,  rfgulatfd  the  time  and 
manner  ol  paying  it,  especially  where  the  cargo  is  to  be  dehvereii  before  the  time 
fixed  for  the  payment  of  the  freight.    Chandler  et  al  v.  Uelden,  18  Johns  Rep.  157. 

A  factor  has  «  general  lien  lor  his  commissions  and  a'lvances.  Urq^inart  v. 
M-lver  et  al.  4  Johns.  Rep.  103.  Peisch  v.  Dixon,  I  Masori's  Rep.  9.  Allen  v. 
Mugguire,  1 5  Mass   Rep.  490. 

But  a  mere  creditor  happening  to  have  in  his  possession  sf)ecific  articles  belong- 
ing to  his  debtor,  has  no  lien  upon  them.    Jlllen  v.  JMagg'dre,  15  JVlass.  Rep.  490, 

As  to  stoppage  m  transitu,  vide  Schulfidd  v.  Bell.  14  D').  40. — Am.  Ed. 

(e)  If  a  trespasser  take  a  chattel  into  his  own  possession,  and  the  owner  sue  and 
recover  damages  for  the  specie  chattel  so  taken,  the  i-ecovery  and  execution,  wjll 
change  the  properly  b\  operation  of  law,  on  the  principle,  that  aolutio pretii,  emp^ 
tiofiis  loco  habitur.  Tide  Curtis  v.  Groat,  6  Johns.  Rep.  168.  Belts  et  al.  v.  Lee, 
5  Do  348.— Am  Ed. 

(/)  An  action  nf  trover  cannot  be  sustained  by  one  tenant  in  common  against 
his  co-tenant,  unless  the  property  be  destroyed.     JfeOb  v,  Danjbrth,  I  Dui/'s  Rep. 


^00  rROVER. 

Part  II.  The  Statute  of  Limitations,  or  that  tlie  plaintift"  released  the 

^tiwV'  defendant,  must  be  specially  pleaded.  On  the  first  plea,  the 
onus  will  lie  on  .the  plaintiff,  to  prove  the  time  when  the  con- 
version was  made  ;  on  the  other,  the  defendant  must  prove  his 
release. 


301.  Moyeet  al,  v.  — • ,2  Uayiv.  Rep.  186.  St.  John  v.  Standrin^,  2  Johns. 

Rtp.  468. 

Or  the  co-tenant  has  solfi  it.    Wilson  et  al.  v.  Reed,  3  Johns.  Rep.  l"5. 

A  sale  of  a  propoition,  if  a  joint  owner  of  a  cargo,  (capable  of  being  (livi<led)  sells 
with  the  consent  and  advice  of  all  the  Others,  it  severs  the  tenancy  in  common,  and 
the  vendee  may  maintain  trover  for  it  against  the  other  joint  owners.  Seldcri  \ . 
Uickock,  2  Cuines''  Rep.  166. 

But  in  an  action  of  trover  brought  for  a  moiety  of  some  carding  machines,  being 
indivisible  in  their  nature,  it  was  Iield  ihat  one  tenant  in  common  of  such  a  chattel 
could  not  bring  trover  against  the  owner,  and  that  a  sale  of  one  of  the  joint  owners 
did  not  sever  the   tenancy  in  common.    St.  John  v.  Slandring,  2  Johns   Rep.  468. 

Where  the  thing  sued  for  is  disseverable  in  its  nature,  a  joint  action  must  be 
brought  by  the  tenants  in  common,  but  in  oilier-  cases- they  may  sue  severally.  Jlfbr- 
rison  v.  Winn,  Hardui's  Rep.  480. 

Where  two  persons  were  joint  owners  of  a  hogshead  of  rum,  and  the  Sheriff,  hav- 
ing an  execution  against  one  of  the  joint  owners,  sold  the  w/iofe  to  the  defendant, 
who  again  sold  it  by  retail  to  others;  it  was  held  that  the  other  joint  owner  could 
maintain  an  action  against  the  defendant  for  his  moiety  of  the  chattel.  Wilso7i  et 
al.  V.  Reed,  3  Johns.  Rep.  175. 

Where  one  joint  owner  sent  a  vessel  to  sea  against  the  consent  of  the  other,  and 
she  was  lost,  the  latter  may  maintain  an  action  of  trover  for  his  moiety.  Loivthrop 
V.  Smith,  1  Hayw.  Rep.  2.55. 

The  plaintiff,  claiming  under  a  joint  tenan«y  which  was  severed,  can  recover  only 
the  proper  proportion.   Witheringtoii  exr.  v.  Williams,  Tayl.  Rep.  134. 

Limtation. 

The  Statute  of  Limitations  will  begin  to  run  in  an  action  of  trover  from  the  time 
of  conversion.  Horsefeldw  Cost,  Addis.  Rep.  15'2. 

In  Virginia,  five  years  peaceable  possession  of  a  chattel  acquired  without  force 
or  fraud  will  give  such  a  title  that  such  possessor  may  regain  it  on  the  ground  of  his 
previous  possession.    J^~ewby''s  adms.  v.  Blakey,  3  H.  &  JMunf.  Rep.  57. — A>i.  Ed 


(  501  ) 


CHAP.  VIII. 


OF  THE  EVIDENCE  IN  ACTIONS  OF  TRESPASS  AND  REPLEVIN. 

In  trespass  the  general  issue  is  not  guilty  ;  in  replevin,  non    Ch.  VIll. 
cepit;  and  on  these  issues   only  the  simple  fact  of  the  commis-     ,.'j.Xvm 
s^on  of  the  trespass,  or  taking  the  goods,  can  in  general  come  in  ___^_____ 
question.     If  the  place  be  material,  as  in  all  local  actions  it  is, 
the  plaintiff  must,  on  these   issues,  prove  that  the  trespass  or 
taking  was  at  the  place  mentioned  in  his  declaration  ;  but  in  ac- 
tions which  are  not  local,  as  in  trespass  committed  on  the  per- 
son or  personal  property  of  the  plaintiff,  it  is  sufficient  to  shew 
that  a  trespass  of  the  kind  complained  of  was  committed  by  the 
defendant,   though  at   a   place  different  from  that  named.(l)(J)  Videante, 
Every  person  concurring  in  the  commission   of  the  trespass  is 
deemed  a  principal,  and  therefore,  though  the  defendant  did  not 
personally  interfere,  yet  if  he  aided  another,  (as  where  a  person, 
having  been  warned  off  certain  land,  conducted  other  persons 
to  the  spot,  and  waited  outside  the  fence  whilst  the  others  went 
in  to  shoot  the  game  being  therein,(2)  or  commanded  his  servant  (2)  Hill  v. 
to  commit  the  trespass,  he  will  be  liable  to  the  action.(.a)  Lauien'ceT 

GloucestiT 

Sp.  Ass.  1806. 
Replevin. 

(a)  As  a  general  principle,  the  owner  of  a  chattel  may  take  k  by  replevin  from 
any  person  ■whose  possession  is  unlawful,  unless  it  be  in  the  custody  of  the  law,  or 
unless  it  have  been  taken  by  replevin  from  him  by  the  party  in  possession.  Ilsky 
et  aJ..  V.  Stubbs,  5  Mass.  Rep.  280. 

In  an  action  of  replevin,  either  a  special  or  general  property  must  be  shewn. 
ITaterman  v.  Robinson,  5  Mass.  Rep.  303.  Ludcler  v.  Leavitt,  9  Do.  104.  War- 
ren  v.  Leland,  ibid.  265.  Perley  v.  Foster,  ibid.  1 12. 

But  not  for  things  affixed  to  the  freehold.  Cressen  et  al.  v.  Stout,  17  Johns. 
Rep.  116. 

In  JVexv  York,  this  action  will  lie  for  any  tortious  or  unlawful  taking  of  goods,  and 
not  in  cases  of  distress  alone.    Pangburny.  Patridge,  7  Johns   Rep.  liO. 

So,  in  Pennsylvania,  it  will  lie  wherever  the  plaintiff  claims  goods  in  the  posses- 
8ion  of  another  Weaver  v.  Lawrence,  1  Dull.  Rep.  156.  Shearickv.  Ruber,  (i 
Binn.  Rep.  3.  Woods  v.  JVixoii,  Jlddis.  Rep.  131.  Stoughtun  v.  Rappalo,  3  Serg. 
&R   Rep.  559. 

So,  in  Connecticut.  Hempstead  \.  Bird,'2.  Day's  Rep.  299. 

It  may  be  brought  against  the  Sheriff's  vendee,  to  recover  chattels  wrongfully 
taken  in  execution  and  sold.  Shearick  v  Ruber,  6  Binn.  Rep.  3.  S.  C-  in  Common 
Pleas  byname  oi  Ruber  v.  Sharch,  2  Browne's  Rep.  160,  Sed  vide  Mojillv. 
Casey,  1  Day's  Rep.  13.  Hempstead  v.  Bird,  2  Do.  299. 


gOS  TRESPASS  AND  REPLEVIN. 

Part  II.         The  declaration  in  trespass  generally  states  the  trespass  to 

'repie\^n  "'  ^^^^  been  committed  on  a  certain  day,  and  on  divers  other  days 

. between  that  day  and   the  commencement  of  the  suit.     The 


But  if  an  officer  having  an  execution  against  ./2.  execiitL-s  it  on  goods  of  _B.,  B. 
may  bring  replevin.  Thompson  v.  Button,  14  Johns.  Rep.  84.  Ladd  \.  JVorth, 
2jMass.  Rep  514. 

It  Iks  at  the  suit  of  the  owner  wlio  has  taken  from  his  servant,  while  in  his  era- 
plo\  ,  b>  T-rtue  of  an  exemtion  against  such  servant.  Clark  v.  Sk^inner,  20  Johns. 
Rep.  465. 

Replevin  being  founded  on  a  mrlious  taking,  will  not  in  general  lie  where  the 
propiTlj  originall}  came  lawfully  into  the  possession  of  a  party,  who  afterwards  un- 
lawfuily  converts  or  detains  it.  JMeany  v.  Head,  1  AIason''s  Rep.  319.  Sed  vide 
Badger  v.  Plduney,  15  JMaxs.  Rep.  ,359. 

It  will  not  li<  against  an  officer,  who  havin;;  levied  on  and  taken  in  execution, 
receives  from  ihe  deliendant  the  amount  due  on  the  execution,  and  then  refuses  to  re- 
deliver the  goo'ls.   Gardner  v.  Campbell,  15  Johns.  Rep.  401. 

A  mere  servant  who  has  the  charge  of  goods,  as  sucli  only,  cannot  maintain  re- 
pl>  viti  ;  but  if  they  are  delivered  to  him  by  his  ruaster  as  bailer,  he  may.  Harris  v. 
Smith,  3  Serg  &  R.  Rep.  'iO. 

In  this  action,  when  goods  have  been  taken,  the  plaintiff  may  sht-w  not  only  the 
.^•enera/ property  which  every  owner  has,  but  also  a  special  property,  such  as  a 
pletlge  of  the  goods  in  question.  Cuslwndenetal.  v.  Harmanet  al.  2  Tyl.  Rep.  435. 

When  a  chattel  is  illegally  taken  and  detained,  all  the  joint  owners  must  join  in 
replevin,  or  the  writ  will  abate.  Hart  v.  Fitzgerald,  2  Mass  Rep.  509.  The  Presi- 
dent &c.  of  ihe  Portland  Bank  v.  Stubbs  et  al.  6  Do.  422.  Gardner  v.  Dutch,  9 
Do.  427. 

Several  counts  ought  not  to  be  joined  in  a  writ  of  replevin.  Hart  v.  Fitzgerald, 
2  Mass.  Rep.  509. 

The  place  of  taking  a  distress  for  rent,  is  material  and  traversable.  Jackso?iex. 
d.  Ridder  v.  Rogers,  U  Johns.  Rep.  33. 

Under  the  plea  of  ?io?i  cepit  in  this  action,  special  matter  in  justificauoD  cannot  be 
admitted  in  evidence.  M'Farland  v.  Barker,  I  Mass.  Rep.  153. 

This  action  will  survive  the  death  o(  i\ik  plaintiff,  but  not  of  the  defendant.  MeU 
Jen  et  al.  v.  Baldxvin,  4  Mass.  Rep.  480.  Pitts  exr.  v.  Hale,  3  Do.  321.  Fister  v. 
BeaU's  adm.  1  Hur.  &  Johns.  Rep  31. 

In  this  action,  the  avowant  must  set  forth  his  title,  and  allege  the  estate  of  which 
he  is  seised,  or  the  avowry  is  had.  Harrisoii  v.  M'Intosh,  1  Johns.  Rep.  3/9.  Sed 
contra.  Jllbright  v.  Pickle,  4  Yeates^  Rep.  264. 

Further  as  to  avowry  and  pleadings  in  replevin,  vide  Gardner  v.  Humphrey,  10 
Johns.  Rep.  53.  Buin  v.  Clark,  ibid.  424.  Shuter  v.  Page,  11  Do.  196.  Cooper  v. 
Miller,  1  Broxme's  Rep.  App.  Ixviii.  Hill  v.  Miller,  5  Serg.  ij  R.  Rep.  355. 

As  Kn joint  or  several  avowries,  vide  Decker  v.  Livingston  et  al.  15  Johns.  Rep. 
4"9.  Eiviiig  V.  Vanarsdall,  1  Serg.  ^  R.  Rep.  370. 

There  is  no  general  issue  to  an  avowry,  but  some  special  point  must  be  traversed. 
Hilly.  Miller,  5  Se7g.  &  R  Rep  355. 

The  Act  of  Limitations  cannot  be  taken  advantage  of,  unless  pleaded.  Smith  v. 
Williamson,  1  Har.  &  Johns.  Rep.  147. 

Where  goods  are  delivered  to  the  plaintiff,  and  the  verdict  is  for  the  defendant, 
the  judgment  is  pro  retor  no  habendo,  and  damages  for  the  taking.  Easton  v.  Worth- 
ington,  5  Serg.  &  R.  Rep.  132. 

And  a  plea  oi properly  in  a  stranger,  is  good  in  bar  or  abatement,  and  entitles  a 
patty  to  a  return  without  an  avowry.  Harrison  v.  MJntosh,  1  Johns.  Rep.  379. 


TRESPASS  AND  REPLEVIN.  ^Qg 

plaintiff  on  this  declaration  may  prove  any  number  of  trespasses    cb.  Vllf. 
committed  within  the  time  mentioned  in  the  declaration,  or  he  Trespass  and 
may  prove  one  trespass  committed  before  the  first  day  named  .. 

A  replication  that  the  defenilaiit  entered  the  house  in  the  Tught  time,  is  bad  ;  so 
also  a  plea  that  the  goods  were  deliveri'd  to  the  plaintiff  by  B.  for  safe  keeping,  and 
that  the  plaintiff  had  a  special  pioperly  in  tiiem,  without  stating  that  3.  had  any 
property  liierein.  ibid. 

Trespass. 

Where  the  injury  is  occasioned  by  the  immediate  act  complained  of,  the  action 
mast  be  trespass.  Mams  \  Hemmenivay,\  Mass.  Rep.  XiS.  Barnes  \.  Third,  \i 
Do.  57.  Cole  V.  Fisher,  ibid.  137.  Starr  et  al.  v.  Jackson,  ibid.  519.  Legaux  v. 
Feasor,  1  Yeates'  Rep   586. 

It  will  lie  in  favour  of  a  tenant  by  the  curtesy.  Clark  v.  JVelton,  1  Root's 
Rep.  299. 

A  tenant  at  sufferance  cannot  maintain  trespass  against  his  landlord,  although  vio- 
lently turned  out  of  possession.  Wilde  v.  Cantilhn,  1  Johis.  Cas.  123.  Hyatt  v. 
Wood,  i  Johns.  Rep.  150. 

A  tenant  entiih  d  to  emblements  after  he  has  quitted  the  premises,  may  maintain 
trespass.  Stewart  v  Doughty,  9  Johns   Rep.  108. 

So  the  grantee  vestnra  terrce,  or  herbagii  ternt.  Per  Kent  C.  J.  ibid.  Stultz  v. 
Dickey,  5  Binn.  Rep.  285. 

A  person  entering  under  a  void  license,  is  a  trespasser.  Chandler  v.  Edson  9. 
Do.  262. 

The  law  is  settled,  that  none  but  the  person  in  possession  of  the  land,  can  main- 
tain tresp&ss  qiiare  clatisttm /regit.  Shenk  v.  Altmdorfet  al. '2  Browne's  Rep.  109. 
Herr  v   Slough,  ibid  111.  Addleman  v.  Way,  4  Yeates'  Rep.2lS. 

In  the  case  of  personal  chattels,  he  who  has  ihe  ge?ieral  property,  need  not  prove 
possession,  because  the  law  draws  the  possession  to  the  property ;  but  one  who 
claims  only  a  s/)e«a/ property,  must  prove  that  he  once  had  actual  possession,  with- 
out which  no  special  property  is  complete.  Jilather  v.  Trinity  Chtirch,  3  Serg.  & 
R.  Rep.  512. 

If  the  di-fi-ndant  have  entered  on  the  land  of  the  plaintiff  to  take  a  chattel  belong- 
ing to  the  defendant,  it  will  be  trespass.  Heermance  v.  Vemoy,  6  Johns.  Rep.  5. 

Where  the  owner  of  land  agrees  with  another  that  he  may  sow  it  on  shares,  they 
may  maintain  a  joint  action  of  trespass  ag-iinst  a  third  person  who  cuts  and  carries 
away  the  crop.  Foote  v.  Colvin,  3  Johns.  Rep.  216. 

This  action  will  lie  against  a  tenant  at  iviU  for  a  voluntary  waste,  for  the  injury 
amounts  to  a  determination  of  the  tenancy.  Phillips  v.  Covert  et  al.  7  Johns. 
Rep.  1.  Snffem  v.  Toiviisend,  9  Do.  35. 

Trespass  lies  against  a  person  in  possession  under  a  writ  of  restitution  awarded 
an  conviction  of  a  forcible  entry,  and  detainer  by  a  Couit  having  jurisdiction,  thougfi 
the  indictment  be  afterwards  quashed,  and  a  re-restitution  awarded.  Case  v.  De 
Goes  et  al.  3  Caines'  Rep.  261. 

Nor  will  it  lie  against  a  stranger  by  the  landlord,  but  it  must  be  brought  by  his 
tenant  who  is  in  actual  possession.   Campbell  v.  Arnold,  1  Johns.  Rep.  511. 

A  lessor  cannot  maintain  this  action  against  a  tenant  at  v/ill  of  the  lessee,  for  a 
trespass  committed  on  the  demised  premises  during  the  lease.  Tobey  v.  Webster, 
3  Johns.  Rep.  468. 

If  a  pi-rson  having  a  possessory  title  to  land,  enter  tliereon  by  force,  and  turn  out 
■)ne  who  has  a  naked  possession  only,  the  latter  cannot  maintain  an  aition  of  trespass 


g()<J<  TRESPASS  AND  REPLEVEST. 

Part  II.     in  it.    In  this  latter  case  he  waves  all  other  trespasses,  and'wiU 
Tiesj.ass and    ^  ^    permitted  to  give  evidence  of  them.(l)     In  general  the 

re|)l>.vin.  r  o  \    J  9       ^ 

declaration  should  state  all  the  acts  which  the  plaintiflF  intends 

(i)Viii  Bui.  to  give  in  evidence,  otherwise  the  defenilant  might  be  taken  by 

N.  P.  86.        surprise.,  h)     There  seems  formerly  this  distinction  to  have  been 

(2)  Vide  6      made,  viz.  that  where  there  were  distinct  trespasses  the  plaintiff 

Mo'i.  127,      could  onlv  give  evidence  of  that  which  was  stated  on   the  re- 
ami  cast  s  -    ° 

ciit'd.  Peake'scord  ;  but  that,  where  there  was  one  continued  trespass,(2)  mat- 

Cas.  3d   edit. 

65,11.  (o)  - — — ■ ■ 

agaiiisl  the  person  so  entering  under  colour  of  title.    Hyatt  v.  Wood,  i  Johns.  Rep. 
150. 

S"  if  a  person,  having  a  legal  right  of  entry  on  land,  enter  by  force,  though  he 
max  be  indicted  for  breach  of  the  peace,  yet  he  is  not  liable  for  a  private  action  of 
trespass  at  the  suit  of  the  person  who  has  no  right,  and  is  turned  out  of  possession. 
ibid. 

Ill  this  action,  the  plaintiif  may  give  in  evidence,  under  the  general  issue,  soil  and 
freehold  111  himself.  The  Froprietors  of  Monumi  Great  Beach  v.  Rogers  I  Mass. 
Rep.  159. 

It  the  defendant  pleads  libernm  te?iei7ientum,  the  plaintiff  cannot  reply  de  injuria 
sua  propria,  but  must  iiaverst  the  title;  oth.  rwise  if  the  defence  be  set  up  by  way 
ot'exct/se,  anil  not  w^  justification.  Hyatt  v.  Wood,  i  Johns.  Rep.  150.  "Slide:  Abel 
V.  Mel,  1  Root's  Rep.  549. 

Letting  lanil  upon  shares  for  a  single  crop,  does  not  amount  to  a  lease  of  the  land, 
and  the  owmr  alone  can  bring  trespass.  Rradish  v.  Schenck,  8  Johns.  Rep.  117. 

A  person  cann''t  bring  trespass,  unb  ss  he  has  the  actual  or  constructive  posses- 
SJ071  of  the  i»()ods  ftftlie  lime.  Putnam  v .  fVyley ,  ibid.  '637.  Dunham  v .  Sluyvc' 
sunt,  11  Johns   Rep.  569. 

Bare  possession  of  a  ch^ilel,  is  sufficient  to  maintain  trespass  against  a  v^rongdoer. 
Hoyt  V   Gelston  et  al.  13  Do   141.   5.  P  in  Er.  ibid,  561. 

If  a  person  hav.ng  till-  to  land,  enter  with  force,  he  is  not  liable  to  an  action  of 
trespass.  Ii-es  v.  Ives,  13  Do.  235. 

Trespass  will  not  lie  for  an  act  done  under  process,  valid  on  the  face  of  it,  and  re- 
gularly issue<l  by  a  Court  of  competent  jurisdiction.  Luddineton  v.  Peck,  2  Con, 
Rep.  700. 

In  an  action  of  ejectment  it  is  no  bar  that  the  title  of  the  land  demanded  was  de- 
termined bi  tween  the  same  parties  in  an  action  of  trespass.  Comes  ?.  Pryor,  JCirb. 
Rep.  395. 

Where  a  trespasser  takes  a  chattel  into  his  own  possession,  and  the  owner  sues  for 
and  recovers  damages  tor  the  specific  article  so  taken  and  detained,  the  pixiperty  in 
the  chattel,  is  by  operation  of  law  changed  and  transferred  to  such  trespasser.  Cur- 
tis V.  Groat,  6  Johns.  Rep.  168. — Am.  Ed. 

(A)  Where  a  trespass  is  laid  with  a  contitiuando,  the  plaintiff  may  give  evidence 
of  divers  acts  o*  trespass  within  ihe  contiminndo,  but  if  he  travels  out  of  it,  he  must 
select  one  act  and  rest  upon  that    Joralimon  v   Pietpont,  1  ./inth.  JV.  P.  Cas-  42. 

Where  an  entry  is  followed  by  an  ouster,  the  party  can  recover  damages  only 
for  the  mere  trt  spass  or  entry  ;  but  if  he  mak'  s  a  re-entry,  and  lay  his  action  with 
a  coiitinuando,  he  may  then  recove-  damages  for  the  mesne  profits  or  subsequent 
acts  as  well  as  the  trespass.    Case  v.  SJiepherd,  2  Johns.  Cas.  17 . 

In  the  narr.  in  trespass  for  an  assault  and  battery,  the  plaintiff  may  allege  many 
things  by  way  of  aggravation,  wliicli  would  not  of  themselves  form  a  cause  of  action, 
Horton  v.  Monk,  1  Browne's  Rep.  65, — Am.  E^, 


TRESPASS  AND  REPLEVIN.  QQQ 

ters  which  were  not  stated  might  be  given  in  evidence  under    ch.  viir. 
the  alia  enormia  alleged  in  the  declaration.     The  former  cases  ^  ''';'''/"^^''i^"* 

proceeded  principally  on   the  idea,  that   matters  which  would 

stain  the  record  by  their  indecency,  need   not  be  alleged  ;  and 
therefore,  where  trespass  was  brought  for  breaking  the  house, 
the  plaintiff  was  permitted  to  prove  in  aggravation,  that  the  de- 
fendant while  there  debauched  the  plaintiff's  daughter.     At  the 
time  of  this  decision  it  was  generally  understood,  that  no  actioa 
would  lie  for  the  latter  injury,  unless  as  an  aggravation  of  the 
other;  and  therefore  the  Judges  might  be  inclined  to  strain  a 
point  to  let  in  evidence  of  that,  which  was  substantially  and  in 
truth  the  cause  of  action.     But,  in   more  modern  cases,  it  has 
not  been  permitted  to  a  plaintiff,  who  complains  of  an  imprison- 
ment of  his  person,  to  show  that  he  was  stinted  in  his  food(l),  or(i)  Lowden 
that  he  caught  an  infectious  distemper.(3)  without  alleging  one  p  ^'T'"'''^';''' 
as  part  of  the  trespass,  or  the  other  as  the  consequence  of  it.  46. 
Still,  however,  the  plaintiff  may  prove   any  fact  accompanying.^^,  p^.^^^ 
the  trespass,  indicative  of  the   motives  of  the  defendant,  and  Aii.i.ngton, 
which  could  not  be  considered  as  itself  a  trespass,  for  the  pur-    '     ' 
pose  of  showing  malice  in  the  defendant;  and  therefore  in  an 
action    for    breaking  and    entering   the   plaintiff's    close,  and 
searching  therein  for  game,  the  Judge  permitted  the  plaintiff  to 
prove  that  the  defendant,  being  a  member  of  Parliament  and  a 
magistrate,  had,  on  being  warned  off  the  land,  used  very  intem- 
perate language  to  the  plaintiff,  and  threatened  to  commit  him, 
and  the  jury  having  given  500/.  damages,  the  Court  of  Common 
Pleas  refused  anew  trial.(3)  (3)Meretv. 

If  an  act  be  committed  by  the  defendant,  which  unexplained  5  xaunt.  442. 
amounts  to  a  trespass  ;  or,   if  in  replevin,  he  insist  on  his  right 
to  take  the  goods,  he  must  justify  or  avow  the  trespass  or  tak- 
ing on  the  record,  before  any  evidence  can  be  received  in  justi- 
fication of  it;  but  where  the  act  itself  without  explanation  ap- 
pears to  be  no   trespass ;  as  where  the  defendant  was  a  mere 
pound-keeper,  and  as  such  received  the  plaintiff's  cattle  from  a 
third  person,   the   general    issue  is   sufficient.t4)     There  is  one  (p]^^^*'"''" '^' 
case,  however,  where  that  which  prima  facie  appears  to  be   aCowp.  476. 
trespass,  may  be  justified,  on  the   general  issui? ;  and  that  is, 

where  the  land  is  the  freehold  of  the  defendant,  or  of  another  ^^  ^    ., 

(5)  DiTisiey 
by  whose  order  he  entered,  for   here  he  does  not  enter  on    the  ?..  Xevii,  i 

property  of  the  plaintiff,  who  is  himself  a  trespasser.(5)     Actual  }j^^^j"-^^'^J,-^j._ 

possession,  or  receipt  of  rent,  is  prima  facie  evidence  of  title,     fin,  7  T.  Rip. 

In  actions  of  trespass,  where  a  right  is  claimed  to  an  incor-^'''|j^^^^'^^jj"'^ 

poreal  hereditament,  which  must  arise  by  grant  or  prescrip-8T.ReiJ.40S. 

3  T 


506  TRESPASS  AND  REPLEVIN, 

Part.  IT.     tion /{I  the  defendant  is  oblijajed  to  state  his  title  particularly. 
replevin."*  ^^  cannot,  as  in  actions  on  the  case,  relv  barely  on  his  posses- 
____^__  sion.     In  general  such  right   is   claimed   hj  prescription ;  and 
(l)2Atk,  137.  where  the  usage  has   been   as  long  as  anyone   can  remember, 
such  plea  will  be  supported  ;  for  posterior  usage  is  evidence  of 
the  antecedent  right  ;  1'  and   therefore  a  jury  will   be  directed 
to  presume  that  it  has  existed,  from  the  commencement  of  legal 
memory.     But  in  cases  where  the  origin   of  the  usage   can   be 
traced,  as  if  a  right  \vas  never  exercised   till  within  the  last 
twenty  or  thirty  years,  though  the  uninterrupted  exercise  of  it 
for  that  time  may  be   sufficient  to  presume  a  grant,  yet  it  will 
not  support  an  immemorial  prescription.     In  these  cases,  there- 
fore, a  practice  has  been  lately  introduced  of  pleading,  in  addi- 
tion to  the  prescriptive  right,  a  grant,  about  the  time  when  the 
usage  commenced,  from  the  person    then  in    possession  of  the 
V  B!'r.kii.a'n  land,  and  that  such  grant  has  been   lost  by  accident. (2)     The 
ST.  R<p  !5i.  piga  must  name  the  person  who  is  supposed  to  have  made  the 
(3)H>^n(iv  T.  grant,  for  a  general   statement  that  the  date  and  names  of  the 
Si-phensmi,    parties  aie   unknown  will   not  be  sufficient ;(3)  but  when  the 

10  East,  55       f^  ,  ,         1        ,     ,  /•  , 

grant  is  properly  pleaded,  twenty  years  undisputed  possession, 
l^wnsm^"  ^''''   ^^  sufficient  to  presume  it,(4)  and  the  defendant   by  this 
SEasi,  29-i.     mode  of  pleading  has  every  advantage  which  he  would  have,  if 
plaintiff,  in  an  action  on  the  case.  A:) 

When  the  defendant  p'eads  a  special  plea,  and  issue  is  joined 
upon  it,  the  party  alleging  the  affirmative  must  prove  his  case. 
But  it  behoves  those  who  conduct  a  cause,  on  the  part  of  a  plain- 
tiff in  trespass,  to  be  particularly  careful  that  the  pleadings  are 
so  framed,  as  to  bring  the  real  case  before  the  jury;  for  where 
a  defendant  pleads  a  justification,  and  concludes  with  an  aver- 
ment that  it  is  the  same  trespass,  and  the  plaintiff  traverses  the 
cause  of  justification,  if  the  defendant  has  any  such  right  or  ex- 
cuse, as  that  mentioned  in  his  plea,   he  will   succeed  ;  for  the 


(i)  Trespass  vi  et  amu's  will  not  lie  for  the  flisturbance  in  the  enjoyment  of  an  in- 
corporeal figlU,  but  thi-  pi  opt-r  resut- dy  is  an  action  on  the  case.  Wetmore  v.  Ro- 
binson 2  Co7i.  Reji.  529.— Air.  Ed. 

(fr)  In  Connecticut,  forty  years  nninterrupti'd  possession  of  a  highwaj',  is  evi- 
deiiC"  that  it  whs  origii  ally  lai'l  ovu.    Candayv.  Lambert,  2  Root's  Rep   IT3. 

Sn,^fteen  years  uriinterrupied  possession  of  a  highway,  will  be  a  bar  to  the  town's 
recovi  riti^  it  for  m  higtiway.  JLiic/iJield  v.  Wilnmt,  ibid.  '288. 

A  iirant  of  lands  under  navigabl**  waters  to  the  ownirs  of  the  adjaci-nt  soil,  will 
not  he  pr'-sunied  without  evjilet.ce  of  long  (\\clnsive  possession,  and  use  to  warrant 
such  A  presumption  f 'aimer  v  Hickfi,  ^  Johns.  Rep.  133.  Vide  Toun^  v.  Hawkins, 
1  Mar.  &  MHen.  Rep.  U8.— Am.  Ed. 


TRESPASS  AND  REPLEVIN.  QQy 

plaintiflf  will  "not  be  permitted  to  give  evidence  of  any  other    ch.\ni. 
trespass,  though  such  in  fact  were  the  real  cause  of  action.     If  ^  w -ssign- 
the  trespass  were  committed  in  a  place  not  named  in  the  decia-  ' 

ration,  and  the  defendant  plead   Hberuin  fenementum,   the   de- 
fentlant  may  apply  his  plea  to  any  other  place,  in  the  same  pa- 
rish, of  which  he  is  seised  ;  and  to  enable  himself  to  prove  the 
trespass  to  have  been  committed  where  it  really  was,  the  plain- 
tiff must  make  a  new  assignment,  particularly  describing   the 
locus  in  quo.il)     So  if  a  larger  trespass  were  committed  than   is 
mentioned  in  the  plea,  or  than  was  necessary  for  the  enjoyment 
of  the  right  claimed  ;  or  another  trespass  were  committed   at  a 
different  time;  the  plaintiff  will   be  estopped   from  giving  any 
evidence,  unless  he  state  these  in  a  new  assignment,  the  nature  VifleWil- 
and  occasion  of  which  is  well  explained  by  the  learned  editor  of  i",'s^x„i'T" 
Saunders^s  Reports,  who  collects  and  arranges  the  numerous  cases  ;'9'  a.""te  6, 
which  are  to  found  on  this  subject.  noies.    ' 

(/)  Where  the  township  in  whivh  was  the  locus  in  quo,  has  been  subdivided  be- 
fore ttie  bringing  the  action,  the  trespass  may  b.-  laid  to  liave  bi  ''n  done  in  the  ori- 
ginal township.  Renaudet  v.  Crocken,  1  Caiiies'  Hep.  167. — Am.  Ed. 


(  508  ) 


CHAP.  IX. 


OF  THE  EVIDENCE  IN  THE  ACTION  OF  EJECTMENT. 


SECTION  I. 

Of  the  plaintiff^ s  evidence  in  general. 

Part  !I,  In  the  action  of  ejectment  the  defendant  is  obliged,  on  his  be- 

'^'  ing  permitted  to  defend,  to  enter  into  a  rule  to  confess  the  for- 
mal and  fictitious  part  of  the  case  ;  viz.  the  lease  to  the  plaintiff; 
that  he  entered  into  possession  of  the  premises  ;  and  that  the 
defendant  ousted  him.  Under  this  condition  he  is  permitted  to 
plead  the  general  issue ;  and  on  that  plea  the  title  of  the  par- 
ties is  the  only  matter  in  controversy.(a) 


(a)  After  a  judgment  by  d(  fault  against  the  casual  ejector,  the  landlord  may  be 
let  in  to  appeal  and  defend.  Jachsonex,  d.Cantine  etal.  v.  Stiles, i  Johns-  JRep.'it'JS. 

Jn  order  to  be  admitted  as  a  defendant  in  an  ejectment,  a  privity  must  be  shews 
between  the  applicant  and  tenant ;  it  is  not  enough  for  the  party  applying  to  swear 
he  claims  title,  and  has  a  real  and  substantial  defence.  Jackson  ex.  d.  TllJitery. 
J\1'Evoy,l  Cuives' Hep   151. 

A  privity  of  interest,  ami  not  the  receipt  of  rent,  is  the  proper  test  of  the  land- 
lord.  IVisner  et  id.  v.  Wilcocks  et  al.  Col.  S^  Cames''  Cas.  in  Prac.  62. 

Wherever  a  landlord  means  to  take  defence,  he  ought  to  make  himself  a  party 
on  the  record.    Clat/ton's  les.  v.  Akhoiise,  2  Dull.  Rep.  150. 

Whtn  the  defemlant  h  s  taken  gt-ntral  defence,  and  entered  into  a  common  rule 
he  catinot  conffss  teasf,  entry,  and  ouster,  for  Apart  only  of  the  tenements  laid  iii 
the  navr.  but  must  confess  for  the  whole.  WilsorCs  les.  v.  Campbell,  1  Dall.  Rep 
126. 

In  cjHCtment,  the  tenants  in  possession  are  the  proper  defendants,  though  the  land- 
lord will  have  a  right  to  be  made  a  defendant,  lest  there  should  be  any  collusioa 
betw.  en  the  plaintiff  and  the  tenant.  Herbert  v.  Ali-xander,  2  CaWs  Rep.  508. 

In  JVeio  York  it  appears  that  when  an  ejectment  is  brought  for  a  vacant  posses- 
sion, a  person  claiming;  title  may  be  admitle<l  to  defend,  notwithstanding  the  strict 
JEnglish  principles.  Saltonstali  v.  WIdte,  Cal.  iif  Caines'  Cas.  in  Prac.  86. 

Afttr  a  judgment  by  delauli,  against  the  casual  ejector,  the  landloid  may  be  let 
in  10  appear  and  defend  ;  and  if  he  be  an  alie?i,  he  is  at  the  time  he  is  let  in  to  de- 
fend, in  season  to  petition  for  ihi-  removal  of  his  cause  into  the  Court  of  the  United 
States.  Jackson  ex  d.  Cantine  et  al.  v.  Stiles,  i  Johns.  Rep.  493,  Et  vide  Jac/r- 
son  ex.  d   Vanderivenker  v.  Stiles,  10  Do.  67. 

The  assignee  of  a  mortgagfc  may  be  let  in  to  defend,  as  landlord,  in  the  place  cf 
the  tenant.  Jackson  ex.  d,  Kiss  v.  Murray,  Aiith.  J\r.  P.  105, 


EJECTMENT.  QQQ 

But  as  this  is  a  possessory  action,  the  plaintiff  must  prove  ch.ix.  s.  i. 
such  a  title  in  his  lessor  as  authorises  him  to  cn^fr  into  the  land  ;       ^"^""y- 
for  where  his  right  of  entry  is  taken  away,  or  tolled,  as  the  legal 


Where  one  of  the  lessors  of  the  plainliffis  dead,  the  Court  will,  on  application, 
oidt-r  all  tiie  counts  in  tlic-  ileclaratinn  to  be  struck  out  in  which  he  is  averted  to  be 
the  lessor.  Dilz  v.  Biitlei;  iliid.  105.  I  Johns.  Cas.  302.  S.  P.  Jackson  ex.  d  Loxo 
et  (d.  V.  Reynolds,  1  Cairus'  Rep.  '20.  Col.  &  Caines'  Cas.  in  Prac.  155.  Jackson 
ex.  d  Butler  et  al  v.  Ditz,  1  Johns.  Cas.  392.  Jackson  ex.  d.  Wilkins  et  at.  v. 
Bavkcraft,  3  Joints.  Rep. 259.  ..imm.'-i  Caines''  Rep.  260.  Anon.  ibid.  2^\.  Davis 
V.  Grainscer,  3  Johns.  Rep.  259.  Frier  et  al.  v.  Jackson,  8  Johns.  Jiep.i95. 

So  in  Peimsylvania\i\v  i\f  nth  of  th  f  te'<.'ior  of  plaiiiti^doiis  not -^hate  the  ejectment, 
which  is  the  lessee's  action.   Les.  of  Ferguson  v.  Smatlman,  Addis.  Rep.  13. 

Under  the  third  sect,  of  the  Act  of  13th  April,  1807,  in  case  of  the  death  of  a 
party  in  ejectment,  the  pt-rson  next  in  interest,  may  be  compelled  to  ap[)ear. 
Barnes  v.  IVelsh,  7  Scvg-  &  R.  Rep.  203. 

In  Pennsylvania,  ejectment  is  an  equitable  action,  and  wherever  Chancery  would 
execute  a  trust,  or  deciet-  a  conveyance,  the  Courts  of  this  State,  by  the  iiistrumen- 
taliiy.of  a  jury,  will  direct  a  recovery  in  ejectment.  Peebles  v.  Reading,  ^  Do, 
484. 

■    The  Court  are  the  judges,  whether  the  plaintiff  is  entitled  to  relief,  and  of  the 
extent  and  mode  of  the  relief;  (he  jury  are  merely  to  ascertain  the  facts,  ibid. 

So,  in  Virginia.  Kinney  v.  Beverley,  1  Hen.  &  Munf.  Rep.  531.  S.  P.  Purvis 
V.  Hill,  ibid  614. 
So,  in  Kentucky.  Robertson  v.  Morgan,  2  Bibb'3  Rep.  148, 
Where  the  lessor  of  the  plaintiff  dies  pending  the  suit,  judgment  is  to  be  rendered 
as  if  he  were  still  living;  and  possession  is  to  be  given   under  the  control  of  the 
Court.  Moorberry  et  al.  v.  Marye,  2  M/mf  Rep.  453. 

But  it  will  abate  by  the  death  of  the  defendant.  Anon.  1  Haytu.  Rep.  500, 
In  Maryland  it  abaies.  Uoxaard's  les.  v.  Gardner,  3  Har.  &  M'Hen.  Rep.  98. 
Where  a  person  is  made  a  lessor  against  his  consent,  and  the  nominal  plaintiff  af- 
terwards liec'.'Hies  non-suit,  such  lessor  is  not  liable  for  costs,  but  the  attorney  who 
made  use  of  his  name.  The  People  v.  Bradt,  6  Johns.  Rep.  318. 

In  JVorth  Carolina,  it  seems  if  a  plaintiff  in  ejectment  sue  for  the  whole  he  can- 
not recover  a  part.   Young  v.  Drew,  Ibid.  v.  Harris,  2  Hayw.  Rep.  100. 

But  in  S(pnres  v.  Riggs,  ibid.  150,  it  was  ruled,  if  you  sue  for  a  moiety,  you  may 
recover  a  third,  and  if  you  sue  for  two  moieties  under  different  devises,  you  may  re- 
cover tivo  thirds 

A  plaintiff  in  ejectment  may  recover  part  of  the  land  for  which  suit  is  brought. 
Santee  v.  Keister,  6  Binn.  Rep.  36. 

After  a  plaintiff  has  obtained  juilgment  for  a  moiety  of  the  land,  he  may  sustain  a 
new  ejectmi  nt  for  the  whole,  against  the  same  parties,  without  taking  possession, 
or  suing  out  a  writ  of  possession,  or  using  any  means  to  enforce  the  former  judg- 
ment. But  if  a  party  after  a  recovery,  harrass  the  defendant  by  a  new  ejectment, 
when  he  is  wdling  to  surrfndfr,  such  defendant  might  obtain  relief  on  motion. 
Rambler  et  al.  v.  Tryon  et  al.  7  Serg.  &  R  Rep.  90. 

A  t>  nant  cannot  controvert  his  landlord's  title.  Anderson  v.  Derby  et  al.  1  JVott 
&  M' Cord's  Rep.  369.  El  vide  Wilsons.  Weathersby,  ibid.  n.  373,  Jackson  ex. 
d.  Bleeker  v.  Whitford,  2  Caines''  Rep.  215. 

Tenants  in  common  cannot  join  in  a  demise;  joint  tenants  and  parceners  may, 
Konns  v.  Gr-iyaon,  2  Bibb's  Rep   237. 

Where  the  term  stai.d  in  liic  declaration  has  expired,  itwill  be  of  no  iiuportance* 
Baker  r.  Heek^ight,  I  Hen.  iS  Munf.  Rep,  177. 


510  EJECTMENT. 

Pfl't.  IT.     expression  is,  and  his  title  turned  to  a  naked  right  of  action,  a 
""^'      real  action,  dinA  not  an  ejectment,  is  the  proper  remedy.* 

""""  In  all  cases  where  the  party  may,  by  entry  alone,  acquire  the 

legal  possession  of  lands,  eras  liord  Mansfield  said,  where  en- 

(i)Dougi.  iry  is  only  necessary  to  complete  his  own  tifle,{l)  he  may  main- 
tain an  ejectment  without  uny  proof  of  an  actual  entry  by  him  ; 
for  as  by  the  ancient  practice  of  ejectment,  before  the  consent 
rule  was  adopted,  it  w^as  necessary  for  the  lessor  of  the  plaintiff 
to  enter  on  the  land,  and  there  seal  a  lease ;  the  confession  of 
such  lease,  according  to  the  modern  practice,  includes  in  it  all 
necessary  formalities,  and,  amongst  others,  the  entry  into  the 
land  for  that  purpose. 

But  when  a  fine  with  proclamations  has  been  levied  by  a  per- 
son in  adverse  possession  of  the  land,  and  having  a  freehold  in 
it,  whether  legal  or  tortious,  this  fine  entirely  devests  the  estate 
of  every  other  person  until  it  is  regained  by  one  of  the  means 
pointed  out  by  the  Statute  4  Hen.  7,  c.  24.  This  m.iy  be  done 
in  the  instances  of  a  fine  levied  by  a  mete  tenant  for  life,  or  one 
who  has  only  a  tortious  estate,^  either  by  commencing  a  real  ac- 
tion, or  making  an  entry,  for  the  express  purpose  of  avoiding  the 

>  fine,  provided  this  be  done  within  the  time  limited  by  that  Act 

of  Parliament,  viz.  within  five  years  after  the  proclamations 
made,  if  the  party  has  a  present  interest,  and  is  under  no  legal 
disability  ;  or  otherwise,  within  five  years  after  the  title  of  the 

'2)  Vide pfs.  party  accrues,  or  his  disability  is  removed. (2)  An  entry,  there- 
fore, is  necessary  in   this   case,  not  merely  for  the  purpose  of 


As  tn  practice  in  ejectment,  \\(if  Finch  v.  Kemble,  C'>1  &  Caines^  Cas.  in  Prac. 
112.  Fischer  \.  Van  Men,  ibid.  tl6.  IVoodward  s.  Qiiacfcei:bos,ibi(l.  121  Jackson 
ex.  J.  Cramer  V.  Winter,  tbid.  207  Anon.  ibid.  kO%.  J<ichiton\.  Stii's,ibtd  414. 
Jackson  ex.  d.  Cramer  v.  Stiles, ibid.  483.  Brandt  ex.  d.  MClehmd  v.  Burrows, 
ibid.  483.  Jackson  ex.  d.  Lawyer  v.  Stiles,  ibid  48i. 

For  the  title  to  be  shewn  in  ejectment,  vide  Lane  et  al  v.  Reynard  et  dl.  2  Ser^.  ^ 
Ji.  Hep.  65.  Co-rert  et  al.  v.  Iiivin  et  al.  3  Do  '28.5.  Les  of  MiUigan  v  Dirkson, 
1  Peters^  Rep  4.35,  7i.  Bailey  et  id  v.  Fnirpluy.  6  Binn  Rep  450.  Vanhoni  v_ 
Flick,  3  Serff.  &  R.  Rep.  278.  Les.  of  WilHidc  »  Miles,  1  Peters'  Rep.  429. 
Les.  of  Packer  v.  Gonsalus,  1  Serg.  &  R   Rep    526. 

Whut  will  be  a  good  deduction  of  title .''  Jenifer's  les.  v.  Baker,  1  Har.  M-Hen. 
Rep.  57.— Am.  Ed. 

•  It  is  foreign  to  (he  plan  of  the  present  work  to  enter  into  a  discussion  of  the  ab- 
struse and  intricme  doctrine  of  discoi-tinuat'ce,  disseisin,  and  desciiit*  ;  but  it  may 
not  be  improper  to  refer  tht  reader  i<  3  Black.  Com  ch  10.  Tayl'.r  dem  .Itkins 
V.  Horde,  1  Burr.  60.  Runningtofi's  Treatise  on  Ej~ctment,  42  to  58,  for  instruc- 
tions on  this  point. 

f  If  tenant  in  tail  levy  a  fine,  the  remainder-man  can  avoid  it  only  by  real  action. 
Moore  v.  Blalce,  Rimnington'^Ej.  ctment,  45.  Vide  Bui.  J\ .  P.  'J9. 


EJECTMENT.  ,  q^j^ 

tompleting  the  lessor  of  the  plaintiff^s  title,  but  of  rebutting  that      Entry. 
oj  the  defmJant,il)  and  in  order  to  rep/ace  the  estate  which  was  ^^- 1^-  *•  ^• 
so  devested  ;  and  immediately  he  has  made  it  the  fine  is  avoided,         "-~— 
his  estate  revests,  and  he  has  the  same  title  as  if  no  fine  had  been  Vg)    °"S  • 
levied.     But  since  the  Statute  of  4  Anne,  c.   16,  he  must  prose- 
cute his  entry  or  claim,  by  action  within  a  year,  otherwise  it  will 
not  avail. 

In  this  case,  therefore,  and  in  this  case  only,(2)  the  formal  ;Jgj^„,j,^'^' 
admission  is  not  sufficient,  but  an  actual  entry  must  be  proved  P;«ikhurst, 
to  have  been  made  by  the  le  sor  of  the  plaintiff,  or  by  some  per-Qat-sfifra. 
son  on  his  behalf,  previous  to  the  day  of  the  demise  laid  in  the  Wisfali  v. 
declaration. (3)     This  entry  must  appear  to  have  been  made  by  3Bhit.'i895. 
the  command  of  the  lessor  of  the  plaintiff  :('4)  or  at  least  as- V""^','?'"^ 

.  ^  1  1    •     •  ■  I     1  nem.  ll-nn  v. 

sented  to  by  him  afterwards  ;(5)  though  it  is  said  that  the  bring-  Caior,  Dougl. 

ing  of  the  action  is  itself  sufficient  evidence  of  such  assent.(6)**'^* 

The  entry  must  be  made  on  some  part  of  the  lands  comprised  in  (S)  Berring- 

the  fine  in  the  name  of  the  whole  ;(7')  and  It  should  also  appear.  f°"pst',fij'''g^" 

that  the  person  entering  declared  that  the  entry  was  made  for 

the  purpose  of  avoiding  all  fines. (8)     In  cases  where  an  entry  lOG  a  Poph. 

could  not  be  made  without  personal  danger,  (a  case  which,  in  ''^^• 

the  present  improved  state  of  society,  can  hardly  ever  happen,)  f  3)  FKchetT^. 

it  will  be  suffi^-ient  to  prove  that  a  claim  was  made  in  the  like^^"""f'^„ 

.-  ,  ,  1  •       '•  ,  ,  Stia.  1128. 

lorm,  as  near  the  estate  as  the  person  making  it  could  come  ;:9) 
and,  in  either  case,  unless  it  appear  on  the  record  that  the  ac- ^.^) '  ,^'^" 
tion  was"  commenced  within  a  year  afterwards,  this  fact  should  lers,  319,  a. 
also  be  proved  in  evidence.(6)  ^-^  P^.^.^^  ^ 

Salishury, 

Hm-d.  400. 
*  A  guardian  may  enter  for  his  ward  without  command  or  assent;  and,  if  a  renain- 
der-man,  or  lord,  cnltr  ki  the  name  of  a  tenant  for  lift-,  or  copyhol(Ur,  or   the  te-  (.^^  See  Wil- 
nani  for  life,  or  copyholder,  in   (he  name  of  the  remsinder-inan,  or  lord,   it  is  w's",!'^'. '^cjiq""' 
sufficient  without  comniHtid  or  assent,  on  account  of  the  p-iviiy  bt-twe<  n  th<>se  per- also  Ford \>. 
sons  ;  and  the  like  rule  holds  in   respect  of  tenants  in  conimon,  joint-tenants,  and  Ld.  Grey,  5 
co-parceners!  Podger's  Case,9  Co.  106,  a.  Mod.  44. 

(b)  In  an  action  of  ejectment   it  was  held,  ihat  an  actual  entry  was  not  necessary  (^)  ^^''^  S-iSl 
in  any  case,  except  to  avoid   a  fine,-  Jackson  ex.   d.  Brojich  v.   Crysler,   1   Juhns. 
Cas.  125. 

Sed  vide  Lincoln  &  Kennebeck  Bank  v.  Drnmmond.  5  Jllas.^  Rep.  321.  Et  vide 
.Tacksoii  ex.- d.  flardenbfrgh  et  al.  v   Schoonmak/'r.  \  Johns   Rep.  390. 

An  actual  entry  is  in  no  case  necessary,  except  to  avoid  a  fine.  Jackson  ex.  d. 
Bronckv.  Ciysler,  1  Johns.  Cas.  125.  . 

An  entry  to  avoid  the  operation  of  the  Statute  of  l/imiiatinns.  must  be  an  entry 
for  thi-  purpose  of  takin,^  possession.  Jackson  ex.  d.  /Jardeitbeig/t  et  al.  v.  Sc/ioon- 
■maker,  4  Johns.  Rep.  390. 

Contession  of  lease,  entry  and  ouster  in  ejectment,  extends  to  an  entry  to  com- 
plete till  till'  t'l  the  at  ton  tput  not  t"  an  f-ntiy,  which  is  nee  ssar\  to  regain  and 
revest  the  possession.  JioU's  ks.  v.  Smith,  I  Mar.  £s?  M Han,  licp,  ti73. 


^i2  EJECTMENT. 

P;>rtlL         A  fine  levied  by  a  bare  tenant  for  years,  without  having  pre- 

•'"'■T-      viously  obtained  a  tortious  fee,  by  feoffment  or  otherwise,  does 

~~~~'~~~  not  operate  at  all   against  strangers.     In   such  case,  therefore, 

(1)  Smith  T.  ^        .  *    ,    ,  .   ,    ®   .       .  .  ,         c 

Paikiiiirsf,  "0  entry  is  necessary  ;{1;  neither  is  it  to  avoid  a  tine  at  com- 
18  Vin.  413  p^Qp  ij^^y  without  proclamations  ;  2)  or  where  the  ejectment  is 
(2).T.nkins  Commenced  before  the  proclamations  are  completed  ;^3)  and  if 
r.  Priichaiii,  Qjjg  tenant  in  common,  being  in  receipt  of  the  whtile  rents,  levy 
2  Wils.45.  1      1  ■        •  c  I  • 

a  fine  of  the  whole  land,  this  will  not  affect  the  estate  of  his  co- 

^Jpl^°,''J^"'"tenant,  so  as  to  render  it   necessary  to  make   an   entry,  unless 

Waus,9East,  there  be  some  further  evidence    of  an   actual  ouster  before  the 

fine  was  levied. v4)     What  will  amount  to  evidence  of  an  actual 

ouster,  we  siiall  have  occasion  to  mention  hereafter. 

Siattifeof        'fhe  Stat.  21   Jac.  1,  c.  16,  enacts,  that  none  shall  make  any 

Limitations.  .  ,,.  ...  ri-^-^i 

entry  into  lands  but   vvithin   twenty  years   next  aitv.r   his  title 
(*)  Pr,nce.      gj^^jj  |^j,g|.  (jescend  or  accrue:  and  from  what  was   said    in   the 

able  <lem.  -    '  .  i  i         >  i    •      •«■ 

Hornblower    commencement  of  the  present  chapter,  that  the  plaintin   must 
F'st*^508^       shew  a  right  of  entry  in  his  lessor,  it  follows  that  no  ejectment 
can  be  maintained  after  that  time.     Therefore  it  is   always  ne- 
cessary for  the  plaintiff  to  prove  possession  in  himself,  his  an- 
cestor, or  a  tenant  vvithin  twenty  years;  or  to  account  fqr  the 
want  of  it,  under  one  of  the  exceptious  allowed  by  the   Statute- 
But  where  there  has  been  a  lease  from  an  ancestor  of  the  lessor 
of  the  plaintiff,  it  is  not  necessat^y  for  him  to  shew  any  payment 
of  rent  under  it  within  twenty  years,  for  his  title  or  right  of  en- 
tiy  does  not  accrue  till  the  expiration  of  the  lease,  and  conse- 
quently the  Statute  cannot  begin  to  operate  against  him  till  that 
(5)OireU).    time  ;(5)  and  if  a  forfeiture  has  been  committed  by  the  tenant 
Rn"riin"t()ii'3  '^  makes  no  difference,  for  he   is  not  obliged  to  enter  for  such 
Ejcctnitnt,     forfeiture. *. 6)     An  adverse  possession   during  twenty  years   is 
not  merely  a  bar  to   thv  action  or  remedy,  but  takes  away  the 
(fi)  Doe  .icm.  right  of  possession  ;  and  for  this  reason  it  is  that  the  defendant 
Daiiveis,        need  not  plead  the  Statute  of  Limitations  as   in  other  cases; 
"East, 299.    ^nd  on  the  same  principle,  in   one   case,  where  ^.  being  lessor 
of  the  plaintiff,  proved  that  he  had    been  in  uninterrupted  pos- 
session for  twenty  years,  and  that  the  defendant  entered  on  the 


An  enlry,  to  assert  a  claim  to  tiie  land,  is  unnecessary,  where  the  tenant  in  pos- 
session.asseiits  to  the  title  of  the  |):irty.   Pender  v.  Jr,ne«,  '2  Hairiu.   Rep.  294. 

Where  a  plaintiff"  lins  a  title  to  land,  an  en^'7/  sives  sufficient  posse  ■■•si  on  to  main- 
tain trespass;  hut  where  he  does  not  r^ly  on  iit/e,  bnt-onl'i  on  possession,  then  the 
possession  must  be  A  posfcssio  pedis,  lirandonv.  Grimkie,  I  A'ott  &  Jif-Cord's 
Hep.  356. 

An  entry  into  a  part  ol'a  tract  of  lantJ,  with  a  claim  to  the  whole,  is  equivalent  to 
an  entry  into  the  whole.  Jac/?so«  ex.  d,  Gansevoort  et  al,  v.  Lunn,  3  Jo/im.  Cas. 
109.— Ah.  Ed. 


EJECTMENT.  g^3 

land,  it  was  holden  that  tliis  possession  of  A.  was  a  sufficient  Ch.IX.  s.  i. 
title  to  enable  him  to  maintain  the  action,  for  that  by  it  the  en-     Statute  of 

1       Ml  1  (-.imitations. 

try  of  the  defendant  was  tolled,  and  consequently  illegal  (l)(c)    

{ 1 )  Stokes  V. 
Adverse  possession.  Borry,  Salk. 

421. 
(c)  In  an  Jiction  of  trespass,  adverse   possession  to  be  operative  must   be  actual, 

continti'tl,  open,  anil  visibli-,  or  it  will  not  Jvvail.  The  Proprielors  of  Kennebeck 
Purch.  V    Call,  1  Mass.  Rep  483. 

Possession  may  bf  proved  by  oijicr  evidence  than  an  enclosure  by  a  fence,  and  of 
its  being  appropriated  to  on^  to  the  exclusion  of  others.  Smith  v.  Isaacs,  1  Root's 
Rep.  251.   S.  P.  Miller  V.  Dow,  ibid.  i\ A. 

A  ttnant  ente'ing  under  a  lease,  and  holding  over  after  the  expiration  of  it,  is 
not  evidence  of  an  adverse  possession.  £randter  ex.  d.  Fitch  et  al.  v.  Marshall,  1 
Caines''  Rep.  394. 

A  claim  and  colour  of  title  sufficient  to  destroy  all  presumption  that  the  defendant 
is  in  under  the  plaintiff,  is  adverse.  Jacksonex.  d.  Dunbar  et  al.  v.  Todd,  i  Cuines' 
Rep.  183. 

Adv^rse  possession,  is  a  question  exclusively  for  the  jury.  Jackson  ex.  d.  Jadiuin 
V.  Joy,  9  Johns.  Rep.  10'2. 

Where  ihf  legal  title  is  in  the  plaintifT,  the  defendant  will  not  be  allowed  to  set 
up  an  equitable  one  in  defence,  against  an  action  at  law.  Jackson  ex.  d.  Smith  et  al. 
v.  Pierce,  2  Johns.  Rep.  221 . 

An  entry  adverse  to  the  lawful  possession,  is  not  to  be  presumed,  but  must  be  clearly 
proved.  Jackson  ex.  d.  Gansevoort  et  al.  v.  Parker,  3  .Tohns  Cas.  124.  Wickham 
V.  Concklin,  8  Johns.  Rep.  170.  Jackson  ex.  d   Ronneli  et  al.  v.  Sharp,  9  Do.  163. 

A  purchaser  at  Sheriff's  sale,'will  not  be  presumed  to  hold  adversely.  Jackson 
ex.  d.  Klein  v.  Graham,  3  Caines'  Re}!.  188. 

The  possession  of  a  defendant  under  an  execution  after  a  sale,  is  not  adverse  to  the 
purchaser,  for  he  is  qnasi  his  tenant  at  will.  Jackson  ex.  d.  Kane  et  al.  v.  Stern- 
bergh,  1  Johns.  Cas.  153.  S.  C.  1  Johns.  Rep.  45.  n.  S.  C.  Jackson  ex.  d.  Klein 
V,  Graham,  3  Caines'  Rep.  1S8. 

So  also  if  the  tenant's  son  should  come  in  uniler  him.  ibid. 

To  make  out  an  adverse  possession,  the  defendant  must  shew  a.substantial  enclo- 
sure, an  actual  occupancy  definite,  positive,  and  notorious  ;  it  is  not  enough  to  make 
what  is  called  a  possession  fence,  merely  by  I'ell'ug  trees  and  lapping  tbem  on  •  upon 
another  round  the  land.  Jacksonex.  d.  Hai dcnberget  al.  v.  Schoo?imnker,'2  Juhns. 
Rep.  239.  S.  C.  i  Johns.  Rep.  390.  Et  vide  Doe  ex.  d.  Clinton  et  al.  v.  Cumpbdl, 
10  Do.  Vi7 .  Juckson  ex.  d.  Gillikmd  et  al.  v.  Woodruff  et  al.  I  Co-wen's  Rep.  '276. 

To  maintain  a  title  on  the  ground  of  adver.ie  possession,  it  must  be  adverse  at  its 
jirst  c»mmencement,  and  continue  so  uninterrupiedly  for  twenty  years.  Brandt  ex, 
d.  Walton  v.  Off  den,  1  Johns.  Rep.  156. 

Where  the  party  rests  on  a  prior  possession,  it  must  be  shewn  clearly  anil  une- 
quivocally  ;  and  tlie  payment  of  tax.  s  and  the  execution  of  partition  deeds,  are  not 
evidence  of  an  actual  possession,  though  they  may  shew  a  claim  to  title.  Jackson 
ex.  d.  Ludlow  v.  Myers,  3  Johns.  Rep.  383. 

Where  A.  went  into  possession  of  land  under  an  agreement  made  with  B.  for  the  JK 

purchase  ;  and  C.  afterwards  took  possession  under  aii  agreement  with  ./?  for  the 
purchase,  the  possession  of  C.  was  luld  not  to  be  adverse  to  the  title  of  B.  .fackson 
ex.  d.  Gnswold  v.  Bard,  4  Jolms.  Rep.  230 

Where  a  decree  of  a  Cnuri  of  Chancery  has  ordered  partition,  in  consequence  of 
the  rights  claimeit,  the  title  of  the  parlies,  in  favour  of  whom  the  decree  is  inarle, 
accrues  on  such  a  decree,  and  possession  pr^  v  ous  to  that  lioie,  cannot  be  uige!  as 
an  adverse  possession.  Jacksonex.  d.  Van Denbei'g  et  ul.  v.  Bra(ft,  2  Caines' Rep. 
169. 

3U 


514;  EJECTMENT. 

Part  II.  But  to  prevent  the  plaintiff  from  recovering,  it  must  appear 
Liruu'ations.  ^'^^^  ^'^^  possession  was  adverse;  the  possession  of  a  tenant  dur- 
ing  his  term  was   before  observed  not  to  be  so  ;  neither  is  the 

An  entry  on  land,  and  erecting  improvements  thereon,  will  amount  to  a  claim  of 
title,  and  constitute  a  disseisin.  Smith  ex.  d.  Teller  v.  Burtis,  1  Anth.  JV".  P. 
Cas.  80. 

In  JVorth  Carolina,  an  actual  adverse  possession  must  be  continued  for  seven 
years,  without  entry  or  claim  on  the  other  side,  before  it  can  toll  the  pLiinliff's  right 
of  entiy.  Den  ex.  d.  Park  v.  Cochran  et  al.  1  Hayiv.  Rep.  178.  S.  P.  Den  ex.  d. 
Slaile  V.  Smith,  ibid.  348. 

In  Connecticut, ^fifteen  years  exclusive  possession  will  bar  the  right  to  land,  and 
m:i\  be  given  in  evidence  under  the  pl'-a  of  not  guilty.  Trowbridge  v.  Roycs,  1 
Roofs  Rep.  60.  Lane  v.  Coplev,  ibid.  68. 

So  it  will,  an  equity  of  redemption,  uidess  there  be  equitable  circumstances  which 
take  it  out  of  the  rule.  Crittendon  v.  Braiiiard,  2  Root's  Rep.  iSS.  S.P.  Sheldon  v. 
Bird.  ibid.  509.  Skinner  v.  Smith,  1  Day's  Rep.  124.  Lockiooody.  Lockviood. 
ibid.  295.  Btdkley  v.  Btdklpy,  2  Day's  Rep  363. 

In  J\'e^v  York,  an  adverse  pedis  possessio  for  twenty  years  and  upwards,  with  a 
claim  of  title  in  lands,  in  right  oi  a  pedis  possessio,  which  lands  are  a  part  of  the  lot 
on  which  ihe  pedis  possessio  is  taken,  is  a  bar  to  a  recovery  in  ejectment.  Jackson 
ex.  d.  Putnam  v.  Botveii,  1  Cainsi'  Rep.  358.  Et  vide  Jackson  ex.  d.  Zimmer- 
man v.  Zitnmerman  et  al  2  Do.  146. 

A  possession  of  foity  years  in  conformity  to  an  acknowledged,  though  erroneous 
line,  is  a  good  bar  to  a  recovery  in  ejectment.  Jackson  ex.  d.  ^^"61113  v.  DysUng. 
2  Caines,  Rep.  198 

Afi<r  twenty  years  in  jilassachusetts .  Burrellv.  Bnrrell,  11  ^lass.  Rep.  294. 

Where  an  agreement  relative  to  land  has  existed  for  more  than  a  hundred  y e^rs . 
and  unintr-rrupted  possession  under  it  by  one  of  the  parties,  his  heirs  and  assigns, 
the  opposite  party  is  conclnded  from  disputing  the  title,  and  the  Court  will  not  listen 
to  technical  ebjt-ciinns  to  (he  deed  for  want  of  apt  words,  proper  parties,  or  form. 
Emans  v.  Tiirnbidl  et  al.  2  Johns.  Rep.  313. 

Afier  a  possession  under  a  partition  for  a  lapse  of  forty  years,  the  parties  are 
barred  from  contesting  the  correctness  of  it-  Jackson  ex.  d.  Schuyler  et  al.  v.  Ved- 
derj  3  Johns.  Rep.  8. 

Thirty  years  possession  under  an  irregular  location,  will  give  a  good  title.  Jack- 
son ex.  d.  TVriffht  v.  Dieffendorf  et  al.  ibid.  269. 

So  an  outstanding  title,  in  certain  Indians  of  the  JMohawk  tribe,  was  held  to  be 
extinguishi  d,  as  the  title  had  never  been  claimed  or  asserted,  and  the  tribe  or  na- 
tion had  become  extinct.  Jackson  ex.  d.  Kluck  el  al  v.  ffndso7i,  ibid.  375. 

After  a  lapst  ot"fnrty-one  years,  a  boundary  according  to  which  the  parties  have 
occnpifd  the  land,  will  not  be  disturbed  Jackson  ex.  d.  M-Donald  v.  J\l-  Call,  10 
Jo/mi.  Rep.  .377.    Et  vide  Jackson  ex.  d.  JVewcomb  v.   Smith  et  al.  9  Do.  100. 

So  where  parties  claiming  under  different  patents,  had  nineteen  years  before  the 
trial,  caused  a  new  boundary  line  to  lie  run  between  them,  it  was  held,  that  after 
^  that  lapse  of  time,  and  their  repeated  acciniescence,  it  could  not  be  disturbed.  Jack- 

son  ex.  d.  Cortlandt  et  al.  v.  Vc7i  Corlaer,  11  Do.  123.  Jackson  ex.  d.  J\/'ellis  v. 
Dyshinff,2  Caines'  fiep.  198.  Stuyvesant  v.  Tompkins  et  al.  9  Johns.  Rep.  61. 
El  vide  Jackson  ex  d.  Weidman  v.  Hubble,  1  Cowen*s  Rep.  613. 

An  outstanding  title  in  a  stranger,  cnnnot  be  set  up  where  there  has  been  an  ad- 
verse possession  for  twenty  years.  Jackson  ex.  d.  Duncan  et  al.  v.  Harder,  4 
.Tohns.  Rep.  202 

A  mortgage  before  foreclosure  or  entry,  is  not  a  legal  title,  which  a  stranger  caa 


EJECTMENT.  -j^^ 

possession  of  a  joint  tenant,  parsoner,  or   tenant  in  common,  ch.  IX.  s.  i. 
without  proof  of  an  actual  ouster.  Actual  ouster. 

set  up.  Collins  v.  ToiTey,  7  Johns.  Hep.  278.  Jackson  ex.  d.  Jllarlinetal.  v.  Pvatt, 
10  Do  381 

Where  an  adverse  passcssion  begins  to  run  in  the  life-time  of  the  ancestor,  aiul 
tile  land  descenils  to  an  infant  heir,  tht-  latter  is  not  protected  by  his  disability. 
Jackson  ex.  d.  Colden  et  al.  v.  JMoore,  13  Do.  513. 

A  person  who  enleis  without  claim  or  colour  of  title,  is  deemed  to  be  in  posses- 
sion, in  subservianceto  the  legal  owner,  and  no  length  of  time,  unaccompanied  with 
any  change  in  the  character  of  the  possession,  will  render  it  adverse.  Jackson  ex. 
d.  Belden  v.  Themas,  16  Juhiis.  Rep.  293. 

A  person  in  possession  of  land,  claiming  title,  may  purchase  in  an  outstanding 
title,  to  protect  that  possession.  Jachsunex.  d.  Preston  et  al.  v.  Smith,  \SDfj.  40S. 

In  JVew  Jersey,  iive?iitf  ?/fflrs  ail  vrrse  possession  is  a  bar  to  an  ejectment.  Den  ex. 
d.  Clark  v.  Lane,  Penning.  Rep.  417'.  , 

So  in  Kentucky   Rice's  heirs  v.  Lovian,  2  Bibl)''s  Rep.  149. 

The  entry  ot  the  owner  of  land,  is  only  barred  by  an  actual,  continued,  visible 
notorious,  distinct,  and  hostile  possession  for  twenty-one  years.  It  is  not  necessary 
to  entitle  him  to  recover  in  ejectment,  that  he  should  prove,  that  he  or  those  under 
•whom  he  claims,  ha>e  been  in  possession  within  twenty-one  years  before  suit  brought. 
Haiuk  V.  Senseman,  6  Serg.  SJ  R.  Rep.  21. 

On  a  joint  demise  by  several,  the  infancy  or  coverture  of  more  than  one  of  the 
plaintiff's  lessors,  does  not  prevent  the  Statute  from  running.  Simpson  et  al.  v.  Shan- 
non's heirs,  3  Atass.  Rep.  462. 

Bj  the  Act  of  Limitations  26th  March,  1785,  (2  6m.  L.  299,)  twenty-one  years 
possession  is  sufficient.     Et  vide  White  et  al.  v.  Kyle's  les.  1  Serg.  SJ  R.  Rep.  515. 

In  Pennsylvania,  sixty  years  possession  will  furnish  a  bar  to  the  title  of  land. 
Morris'  les.  v.  I'(i7ideren,  yDall.  Rep.  67. 

In  Pennsylvania,  it  is  not  necessary  to  plead  the  Statute  of  Linaitations  ;  the  be- 
nefit of  that  Act  is  secured  to  the  defendant  by  his  plea  of  not  guilty.  Gallagher  v. 
M'JVvtt,  3  Serg.  &  R  Rep  409. 

By  twenty-otie  years  possession  of  land,  a  right  oi  possession  is  acquired,  which 
is  not  only  sufficient  to  support  a  defence,  but  is  a  positive  title  under  which  one 
may  recover  as  plaintiff  in  ejectment.  Pederick  v.  Searle,  5  Serg.  &  R.  Rep.  235. 

in  Maryland,  the  possession  of  the  part  of  a  tract  of  land  is  possession  of  the 
whole,  and  the  law  wdl  adjudge  the  possession  to  be  in  him  who  has  the  right,  unless 
the  adverse  possession  were  by  actual  inclosure  or  exclusive  possession  when  txventy 
years  iiossession  will  be  a  bar.  Srnith's  les.  v.  Middlelon  et  al.  1  Har.  ij  M'Hen. 
Rep.  521. 

So,  an  ancient  possession  of  a  tract  of  land,  conveyed  by  a  wrong  name,  cures  a 
variance  between  the  grant  and  the  conveyance.  Joce's  les.  \.  Harris,  ibid.  196. 
Vide  Cloyland's  les.  v.  Pearce,  ibid  29.  Lee's  les.  v.  Bladen  et  al.  ibid.  30, 
Miller's  les.^.  Bynson,  ibid.  84.   Young  v.  Haiukins,  ibid.  148. 

In  Virginia,  sixty  years  uninterrupted  possession  will  give  a  good  title  to  land 
ant*  he  a  b^r  as  well  to  a  writ  of  right,  as  to  an  ejectment.  Birch  v.  Alexander,  1 
Wash.  Re[).  45. 

Long  possession  will  render  valid  a  defective  conveyance.  Lee  v.  Tapscot(,2 
Wash.  Htp.  351 

Th-  Act  of  Limitations  will  run  in  eiuity,  as  well  as  at  law,  in  favour  of  an  ad- 
verse possession.  Harrisson  v.  Harrisson,  1  Call's  Rep.  419.  Vide  Ross  v.  JVor- 
veil,  1  Hush.  Rep.  19. 

In  J\'ortli  Carolina,  possession  with  colour  of  title  for  seven  years,  will  bar  an  ad- 
verse potaession.    Bovretts  v.  Turner,  Tayl.  Refj.  112.  S.  C.  2  JIuyw,  Rep.  U3. 


QlQ  EJECTMENT. 

PhiiII.  What  does  amount  to  such  proof  does  not  seem  to  be  very  ac- 

^*^'"'*' ""^'^'''curatel  J  determined. (rf)  Lord  Holt  is  reported  to  have  said 
~^~~~~"  that  the  rule  of  the  possession  of  one  tenant  in  common  being 
Raym  312  the  possession  of  the  other,  did  not  hold  place  against  the  Sta- 
tute of  Limitations;  and  that  if  one  of  them  only  takes  the 
R-a.i'n?t).  profits,  it  is  an  ousting  of  the  other  ;(1  j  but  in  subsequent  cases 
RaMsien. ,    jj.  ^      been  said,  that  bare  perception  of  the  whole  profits  does 

2  Lord  Ra\  m.  ,      i  r  • 

820  5  Bun.  not  amount  to  this;(2)  and,  therefore,- where  one  tenant  in  com- 
mon  had  been  in  receipt  of  the  whole  rents  for  twenty-six  years, 
yet  as  there  was  no  evidence  of  his  having  actually  claimed  the 


S,P.  Stanly  y.  Turner,  Rep.  in  Co.  ofConf.  533.    Grant  v.  Winbome,'2  Hayiv. 

Rep.  56. \.Ashe,  ibid.  103.  Anon.  ibid.  134.  Sed  vide  Bloss  v. 

ibid,  ■i.i'i,  cunira. 

Possi  ssion  of  part  of  land,  is  possession  of  the  -whole.  Borretts  v.  Turner,  ibid. 
113.  Lurkins  v.  AliHer,  ibid.  Si5. 

From  an  uninttn  upled  possession  for  a  great  length  of  time,  a  jury,  under  cei»- 
tain  circumstanet's,  m:»v  infer  ttiat  its  origin  was  lawful.  D''7i  ex.  d.  Hankn  v.  Tnc' 
ker,TuylRep    157    S.  C. '2  Hayw.  Hep.  Ii7.     Vi'\e  PP ells  v  A'e-whold,  ibid.  166. 

Whether  if  an  acti.m  be  institut«-d  under  ihi'  Statute  (of  J\'e7</  Fork)  of  the  '28th 
JMarch,  1797.  wiihin  th^  five  jears  thereby  limited,  and  it  abate  by  the  death  of  the 
deftndant,  «ho  dies  aftii-  the  five  ycai'S  have  expired,  another  action,  though  insti- 
tute'! directly  after,  can  be  maintained.  Jackson  ex.  d.  Frost  v.  Horton,  3  Caines'' 
Rep.  197.— An,  En. 

(d)  One  tenant  in  common  may  oust  his  co-tenant,  and  hold  in  severalty  ;  but  a 
silent  poss  ssion,  unaci'ompanied  by  any  act  amountmg  to  an  ouster,  or  giving  notice 
to  the  co-tenant  that  his  possession  is  adverse,  cannot  be  construed  into  an  adverse 
possession.  M'Clitrg  v.  Ross,i  fV/ieat.  Rep.  230. 

Joint  tenants  must  Join  in  ejectment,  and  "ne  of  three  joint  tenants  cannot  recover 
a  third  part  of  thi-  premises  of  a  stranger.  Milne  v    Cummings,  4  Teates''  Rep.  577. 

The  fMCt  that  one  tenant  in  common  is  in  possession  of  the  estate,  claiming  to  hold 
it  by  a  deed  covering  the  whole  of  it,  is  sufBcient  evidence  of  an  ouster  to  support 
ejectment  by  a  co-tenant.   Clark  v.  Vuiighan,  3  Con  Rep.  191. 

If  one  tenant  in  common  hinder  the  entry  of  the  other,  it  will  constitute  an  ouster. 
Gordoji  V.  Pearson,  1  JVIass.  Rep.  o'^li. 

An  exclusive  possession  by  one  t-nant  in  common  for  forty  years  unde'-  a  claim  of 
right,  will  amount  to  an  ouster.  Vandyck  v.  Van  Beuren  et  at.  1  Caines''  Rep.  84. 
Et  vide  Jackson  ex   d.  Denniston  et  al.  v.  Denniston,  4  Johns.  Rep.  311. 

But  a  bare  pre  ception  of  the  profits  by  one  tenant  in  common  without  an  adverse 
possessioii,  will  not  bar  the  other  tenant  in  common,  jllorns^s  les.  v.  Vandereii, 
1  Ball.  Rep.  64. 

5.  P  m  Maryland.  Johnson  v.  Hoxoard,  1  Har.  &  M'Hen.  Rep.  281. 

In  equity,  as  well  as  at  law,  it  may  be  shewn  from  circumstances,  that  the  posses* 
sion  of  the  defend«ni  ought  not  to  be  consideret}  ai  adverse.  Wallace  et  al.  v.  Duf- 
fieldet  nx.  2  Serg.  &  R.  Rep.  521. 

In  order  touvoid  the  plea  of  the  Statute  of  Limitations  loan  action  by  joint  tenants, 
it  is  necessary  to  shew  that  all  the  tenants  were  under  a  disability  to  sue.  Higgin- 
son  v.  jyiinn,i  Cranch^s  Rep.  415. 

One  tenant  in  common  may  maintain  ejectment  against  his  co-tenant,  though  no 
actual  ouater  proved.  Shepard  v.  Ryers,  15  Johns.  Rep.  501. — ^Am  Ed. 


EJECTMENT.  5£'^ 

whole  estate,  but,  on  the  contrary,  it  appeared  that  he  was  ad-  Ch.  ix.  s.  i. 
mitted  tie  land  being  customary  freehold)  to  a  moiety  only,  it  Actual  ouster, 
was  holden  to  be  no  oi<sfer,  and  that  the  Statute  did  not  attach. (1)  ~* 

And  the  like  decision  took  place  where  one  tenant  in  common  ,iem.  Emptun 
levied  a  fine  of  the  whole  premises,  and  there  was  no  other  evi-Y-^''a'^''i':K'n, 

.  n  1  1    I  •  c^  Burr. '2604. 

dence  of  adverse  possession. (2)     But  though  bare  perception  oiz  Black.  690. 
the  profits  is  not  itself  an  ouster,  yet  if  continued  for  a  great   ' 
length  of  time  without  any  claim  by  the  party  out  of  possession, (2)  P-aceable 
it  may  be  evidence  tor  the  jury  to  presume  one:  as  where  par- ijjy^^,.  ^ 
tition  was  made  of  an  estate  of  two  women,  who  were  tenants  Read,  aaie, 
in  common  in  tail,  and  one  part  was  assigned  to  the  husband  of 
one  during  his  life,  and   it  was  proved  that  after  his  death  his 
wife  remained  in  possession  for  thirty-six  years,  and  there  had 
been  no  acknowledgment  of  title,  nor  accounting  for  the  rents  ; 
the  Judge  left  it  to  the  jury  to  presume  an   actual  ouster,  and 
they  having  found  accordingly,  the  Court  held  that  the  Statute 
barred  the  action.(3)     In  -that  case   Lord  Mansfield  said,  the  ^p^^,,^°a„'J["' 
possession  of  one  tenant  in  common,  eo  nomine,  as  tenant  inanotheny. 
common,  can  never  bar  his  companion;  because  such  possession  (j^'^^,']'".^jj^ 
is  not  adverse  to  the  right  of  his  companion,  but  in  support  of 
their  common  title,  and  by  paying  him  his   share,  he   acknow- 
ledges him   his  co-tenant,     Nor,  indeed,  is  a  refusal  to  pay  of 
itself  sufficient  without  denying  his  title.     But  if,  upon  demand 
by  the  co-tenant  of  his  moiety,  the  other  refuses  to  pay,  and  de- 
nies his  title,  savins^  he  claims  the  whole,(4)  and  will  not  pay,  and  (.')  '^'1'^^,^°^ 

'        C7      o  '      '^  r    •?     .         (leii!.  Hillings 

continues  in  possession,  such  possession  is  adverse,  and  ouster  v.  Bird,  11 
enough.  Then  adverting  to  the  circumstances  of  the  particular  ^"^'''^^•°''*' 
case,  and  observing  that  there  was  no  evidence  of  any  account 
demanded,  or  of  any  payment  of  rents  and  profits,  or  of  any 
claim  by  the  lessors  of  the  plaintiff",  or  of  any  acknowledgment 
of  title  in  them  ;  his  Lordship  added,  therefore  I  am  clearly  of 
opinion,  that  an  undisturbed  and  quiet  possession  for  such  a 
length  of  time,  is  a  sufficient  ground  for  the  jury  to  presume  an 
actual  ouster,  and  that  they  did  right  in  so  doing. 

The  disabilities  mentioned  in  the  Statute  of  Hen.  7,  as  to  fines,  I^'^,^'"''!X,"^ 

...  .  plaiuntr. 

and  also  in  the  Statute  of  James  1,  are  iniancy,  coverture,  in- 
sanity, being  imprisoned,  or  beyond  the  seas.     Persons  labour- 
ing under  either  of  these  disabilities,  or  their  heirs,(5j  may  make  (5)  Vide  Dot 
their  entries  in  the  case  of  a  fine,  within  five  years,  and  in  other  ^'  jesson.c 
cases  within  ten  years,  after  the  removal  of  the  disability,  not- East,  so. 
withstanding  twenty  years  may  have   elapsed  ;  and,  therefore, 
in  either  of  these  cases  where  the  ordinary  time  is  gone  by,  and 
the  person  suing,  or  his  ancestor,  was  within  this  exception,  the 


518  EJECTMENT, 

Part  II.      lessor  of  the  plaintiff  should  be   prepared  with  proof  of  it.(e) 
^'TMm'i'i*fir'"   Here  it  may  be  observed,  that  the  disability  should  be  shewn  to 

have  existed  at  the  time  when  the  fine  was  levied,  or  the   title 

accrued,  and  to  have  continued  till  the  within  time  of  limitation, 
for  when  once  the  Statute  has  begun  to  operate,  no  subsequent 
(l)Doedera.  disability  will  prevent  its  progress.(l)  And  if  an  estate  descend 
Tones" Vt  upoH  two  paixeners,  one  of  whom  is  under  coverture,  and  the 
Rep.  300.  other  a/eme  sole,  though  the  time  given  by  the  Statute  will  ex- 
tend to  the  tiioiety  of  the/eme  covert,  the  other  must  sue  for  her 
(2)Roe»iem.  moiety  within  twenty  years  after  her  title  accrues.(2) 
Rpil^ston,  It  should  seem  that  previous  to  the  Statute  4  Snn.  c.  16,  the 

2Taant.  ^-i'- party  claiming  title  to  lands  in  cases  where  the  right  of  entry 
was  not  barred,  might  have  avoided  the  operation  of  the  Statute 
of  James  altogether,  by  making  continual  entries  on  the  land; 
{3)  Vide  Co.  for  as  actual  entry  gave  complete  possession,(3)  so  every  entry 
3Black  Com. gave  a  new  date  from  which  the  operation  of  the  Statute  com- 
ics, raenced.  In  this  case,  however,  it  was  necessary  to  prove  an 
(4)  Ford  7'.     actual  entry  ;[ A)  and  for  this  there  seems  to  be  good  reason,  for 

Grey,  Salk.     jf  ^he  formal  confession  of  entry  had   been  sufficient,  the  neces- 

285,  f).  Moil.  ,  J    ,  t  ,    ^    .  , 

i4,  S.  C.        sary  consequence  would   have  been,  that  in  no  case  whatever 

would  the  Statute  have  had  operation.      Therefore,  even  if  one 

ejectment  were  brought,  and  the  plaintiff  failed,  the  confession 

(e)  A  deed  will  never  be»  presui-ned  froni  Kngth  of  lime  to  have  been  executed, 
where  the  parties  have  been  under  any  legal  disabilities  Eaton  v,  Sandfurd,  2 
Day's  Rep.  527. 

The  possession  of  the  tenant  for  life,  and  those  under  him,  though  they  claim  a 
•'^eat^r  estate  thrin  he  hath,  will  not  defeat  the  i  ight  of  remaindt^r-man  until  after 
the  death  of  the  particular  tenant.   Chandler  v.  Philips,  I  Roofs  Rep.  546. 

Neither  a  descent  cast,  nor  the  Statute  of  Limitations  will  bar  or  aflFect  a  remain- 
der-msn  or  reversioner  during  tlie  continuance  of  the  particular  estate  ;  nor  will  the 
acts  or  laches  of  the  teiunt  afF'Ct  the  party  entitled  in  remainder.  Jackson  ex.  d. 
Hardcnberg  et  ah  v.  Schoonmuker,  iJohis.  Rep.  390. 

VVhere  the  ancestor  died  in  possission,  and  his  son  and  heir  succeeded,  and  con- 
tinueil  in  undisturbed  possession  for  eighteen  years,  it  was  held,  that  a  purchase  of 
the  title  by  the  ancestor  might  be  presumed.  Jacksonex.d  S\I- Donald  \.J\I'' Call, 
10  Jolius.  Rep.  37".  Vide  Jackson  ex.  d.  Myers  v.  Elpoveth,  20  Do.  ISO. 

The  jury  may  presume  a  grunt  regularly  issued  where  there  had  been  a  certifi- 
cate of  survey  reiurne<l,  and  sundry  conveyances,  and  possession  by  persons  claiming 
under  them.  IlaWs  les.  v.  Gaugh,  1  Har.  &  Johns.  Rep.  119. 

So  the  Statute  of  Limitations  b(  gins  to  run  wiihiii  seven  years  after  the  right  to 
defeat  the  title  first  descends.   Wells  \.  iVewbold,  Tayl.  Rep.  \^7. 

An  infant  who  has  been  disseised,  is  bnund  to  bring  his  action  within  ten  years 
after  coming  of  age.  Jacksoti  ex.  d.  Renselaer  et  al.  v.  Whitlock,  1  Johns.  Cos.  213. 

Ill  Mai-yland  it  has  been  decided,  that  the  Lord  Proprietary  had  not  the  rights  of 
the  Kin"  of  Great  Britain,  and  th:it  he  might  be  barred  by  the  Statute  of  Li.-niia- 
tioit  and  adverse  possession  of  lands,  which  he  claimed  by  escheat.  liussell's  les. 
V.  Baker,  1  liar.  &  Johns.  Rep.  71.— Am.  Ed. 


EJECTMENT.  g^Q 

in  that  action  would  not  have  lielped  him   in  another  brought  Ch.  IX.  s.  i. 
after  the  expiration  of  the  twenty  years.(l)     This  mode  of  evad-  ^^g"s3''i"J,'f 
ing  the  Statute  oi  James  was  remedied  by  the  Statute  of  4  ^nn.  . 
c.  16,  s.  16,  whereby  it  is  enacted,  That  no  claim  or  entry  to  be(i)  vi.ie  12 
made  of  or  upon  any  lands,  &c.  should  be  of  any  force  or  effect  *^1''- Y\ 
to  avoid  any  fine  to  be  levied  with   proclamations,  or  should  be  P.  102,  wiiere 
a  sufficient  claim  or  entry  within  the  Statute  of  James,  ^^^^^^[.\ie,\As{:'is 
upon  such  claim  or  entry  an  action  should  be  commenced  within  K.  IJ-, 
one  year  next  after  the  making  such  entry  or  claim,  and  prose- 
cuted with  effect.     Mr.  Douglas,  adverting  to  what  was  said  in 
the  law  of  Nisi  Priiis,  makes  a  question,  whether  it  is  not  ne- 
cessary to  make  an  actual  entry  to  prevent  the  operation  of  the 
Statute  of  Limitations.(2)     To  which  it  may  be  answered,  that(cl'^°"s}- 

403.  n.  ( i.) 

it  certainly  is,  if  an  action  is  to  be  brought  after  the  expiration 
of  twenty  years  from  the  time  of  actual  possession  ;  and  in  cases 
where  the  Statute  of  Limitations  has  nearly  run,  it  maybe  pru- 
dent to  adopt  that  measure,  the  effect  of  which  will  sometimes  9 
be  to  give  the  lessor  of  the  plaintiff  an  additional  year  within 
which  to  bring  a  second  ejectment  in  case  of  failure  in  the  first; 
for  if  it  be  proved  that  a  person  having  title,  just  at  the  conclu- 
sion of  twenty  years  adverse  possession,  made  an  actual  entry 
on  the  land,  and  that  he  brought  his  ejectment  within  a  year 
afterwards,  it  seems   that   the   Statute   will   not    bar  him  i/'S^l^XY"'*^  J 

'\     J  Williams 

whereas  if,  without  making  any  entry,  he  had  brought  his  eject- Saund.  319,  c 
ment  and  failed,  he  would  have  been  without  remedy  in  this 
form  of  action;  for  the  formal  confession  of  entry  in  the  first 
ejectment  would  not,  as  we  have  before  seen,  have  been  a  suffi- 
cient entry  to  enable  him  to  bring  another  after  the  expiration 
of  the  twenty  years. 

It  seems  to   have   been  formerly  doubted  whether  when   an 
ejectment  was  brought  by  one  tenant  in  common  against  another 
it  was  not  necessary  on  the  part  of  the  lessor  of  the  plaintiff  to 
prove  that  he  was  actually  ousted  by  his  co-tenant  ;(4)  but  it  is  (*)  ^'^^  " 
now  clearly  settled,  that  such  evidence  is  not  necessary,  but  is 
supplied  bv  the  confession  in  the  rule. (5)     If  indeed  the  party  1^)/-**!?*'^^" 
m  possession   has  never  disputed  the  title  of  his   co-tenant  inBivdon, 
common,  he  will  not  be  obliged  to  make  this  confession  ;(6)  but,"^  ^"'"'''  ^^^^ 
as  was  observed  by  Lord  Mansfield,  in  IRgfall  v.  Brydon,  it  (6)  Doe  clem, 
is  scarcely  possible  to  suppose  that  a  tenant  in  common  should  jj|,^"2Taunt 
bring  an  ejectment,  where  there  is  not  an  actual  ouster,  viz.  a 397. 
denial  of  his  title.     Still,  as  there  may  be  cases  in  which  a  tenant 
in  common  may  be  admitted  to  defend  without  confessing  ouster. 


520  EJECTMENT. 

Part  II.     it  is  incumbent  on  the  plaintiff  to  produce  the  consent  rule  to 

Actual  ouster,  gj^^^  ^,^^^  ,^^,  j^^^  j^^^  S0.(1)(/) 

Great  inconvenience  has  frequently  arisen  bj  reason  of  the 
White tj.CnfF,  plaintiff  being  called  on  in  all  cases  to  prove  that  the  defendant 
1  Campb.  173.  ^as  in  possession  of  the  lands  for  which  the  ejectment  was 
brought ;  to  obviate  which,  general  rules  have  lately  been  made 
by  all  the  Courts  at  Westminster,  making  it  incumbent  on  the 
defendant,  in  all  cases,  to^specify  the  premises  for  which  he  de- 
fends, and  to  admit  that  he  was  in  possession  of  them  at  the 
time  of  the  service  of  the  declaration  in  ejectment. 

{f)  If  a  defendant  in  ejectment  claims  title  as  tenant  in  common,  he  ought  to 
enter  into  the  common  rule  specially, ior  if  he  enters  into  the  lisuai  consent  rule,  he 
cannot  object  that  no  actual  ouster  was  proved  at  the  trial.  Jackson  ex,  d,  Dennis- 
ton  et  al.  V.  Dennistoj},  4  Johns.  Rep  311. 

In  Connecticut,  tenants  in  common  may  join  in  an  action  for  their  common  estate 
or  each  may  sue  separately  for  his  part.  HUlhouse  v.  Mix,  I  Roofs  Rep.  246. 

In  Vermo?it,  tenants  in  common  may  maintain  ajoi?iC  action  of  ejectment.  Hicks 
V.  Rogers,  4  Crunch's  Rep.  165. 

So  in  A'ew  York,  tenants  in  common  may  make  either  a  joint  or  separate  demise 
in  ejectment.  Jackson  ex.  d.  Van  Denberg  y,  Bradt,  2  C(unes^  Rep,  169. — ^A>i. 
Ed. 


SECTION  II. 


Of  the  defendant's  evidence  in  general. 


Sg(,j  2  I  HAVE  confined  my  observations  concerning  the  evidence  on 

Defendant's  the  part  of  the  plaintiff*  to  ihdii  formal  proof  which  every  plain- 

^^'  tiff  in  ejectment  may  be  called  upon  to  give.(^)     I  have,  how- 


C^)  A  rightful  and  lawful  possession  will  be  sufFicieat  to  recover  in  ejectment 
against  the  wrong  doer.  Laiu  v.  Wilson,  2  Root's  Rep   102. 

So  where  the  defendant  had  been  three  years  in  peaceable  possession,  and  the 
plaintiff  enters  without  any  colour  of  right,  the  plaintiff's  possession  will  be  sufficient 
to  recover  in  « jvctment  against  the  defendant  who  is  considered  a  trespasser  Jack- 
son ex.  d.  Murray  et  al.  v.  Hazen,  2  Johns.  Rep.  '22. 

A  person,  who  has  been  in  possession  of  land  for  eight  or  ten  years,  under  colour 
of  title,  is  to  recover  against  a  mere  intruder  or  trespasser.  Jackson  ex.  d.  Duncan 
et  at.  V.  Harder,  4  Johns.  Rep.  202. 

If  there  be,  out  of  the  plaintiff,  a  better  title  in  a  third  person,  than  the  plaintifTs, 
the  defendant  shall  keep  possession  against  the  plaintiff,  until  the  better  title  shall 
appear.  GilUland'a  les.  y,  Banna,  Addis,  Rep,  254. 


EJECTMENT. 


521 


ever,  observed,  in  the  outset,  that  he  must  prove  a  legal  title  in  ch.  IX.  s.  2. 
himself.     It  follows,  that  if  the  defendant  prove  a  title  in  any  u. iln.iant's 

*  v'llcncc 

other  person,  he  gives  an  answer  to  the  plaintiff's  claim  ;  and " 

though  it  was  at  one  time  held,  that  if  the  plaintiff  vvere  really 
entitled  to  the  possession  of  the  premises,  a  hare  legal  title 
should  not  preclude  his  recovery  ;  yet  it  is  now  clearly  settled, 
that  if  tlie  legal  estate  be  shewn  to  be  in  any  other  person  he 
cannot  recover.(/i) 

The  plainlifT  in  ejectment  must  pruve  llie  bounds  and  location  of  the  lands,  to 
■which  hi-  has  made  title,  though  no  di'tVnce  he  tniide  ("or  any  lands  l.vii;g  within  the 
bounds  of  his  pretensions.  Dockej-y'n  leu.  v.  JMuynard,  \  H.  &  JiPffen.  Rep.  209. 
So  possession  is  a  good  title  against  another  who  claims  under  an  ''sch<-at  grant, 
there  bring  no  proof  of  death  of  the  tenant.  Hiitc/iins's  les.  v.  Erick^on,  ibid  339. 
If  the  verdict  do  not  find  title  or  possessi<in  in  die  grancor  ho  can  convey  neither, 
and  his  gr  antee  cannot  maintain  ejectment  agamst  the  tenant  in  possession.  Tabb  v. 
£aird,  3  Call's  Hep.  475. 

I.,  law,  the  plaindfTmust  recover  on  the  strength  of  his  own  title,  without  r'-gard 
to  the  weakness  of  the  defendant's  title  ;  in  equity,  the  complainant  must  shew  that 
he  has  a  good  and  superior  equitable  right  to  tin-  thing  demanded,  before  he  can 
wrest  the  legal  title  out  ot  the  defendant,  whatevi  r  were  the  means  by  which  it  was 
acquired.  Patterson  v.  Bradford,  Hardin's  Hep   101. 

But  in  an  action  of  ejectment,  when  the  defendant  pleads  the  general  issue,  and 
clamis  no  title  in  hinisell,  he  sh;dl  not  be  permitt'd  to  give  in  evidence  a  copy  of  a 
deed  from  the  plainiifTs  grantor  to  a  stranger  to  prove  that  the  plaintiff  has  no  title. 
Phelps  V.  Yeomans,  2  Day's  Rep.  227. 

If  the  defendant  acquire  title  to  the  premises  inquestion  anv  time  during  the  suit, 
the  plaintiffcannot  recover.  Muiisell  \ .  Sandford,  1   Root's  Rep  257. 

How  far  this  rule  in  actiotis  com-.-rning  realties  will  apply  io  personalties.  Miller 
et  al  V.  Miller  et  al.  2  Dull.  Rep.  1. 

Possession  in  the  lessor,  without  claiming  title,  will  not  maintain  the  action. 
Truesdaley.  Jeffries,  1  Caines'  Rep.  190,  n. 

It  IS  not  necessary  that  the  plaintiff  should,  on  every  occasion,  shew  a  possession 
of  twenty  years,  or  a  paper  title  ;  but  a  possrssion  for  a  1  ss  period  will  firm  a  pre- 
sumption of  title  sufficient  to  put  the  tenant  on  his  defence.  Smith  ex.  d.  Teller  v. 
£.orritard,  10  Johns   338. 

The  jilaintiff  in  ejectment  must  recover  on  the  strength  of  his  own  title,  ami  not 
on  th>-  weakness  01  the  defendant.  I^s  offVelkers.  Coulter,  Jiddis.  Rep.  390. 
Lane  et  al  v.  Reynard  et  al.  2  Sei-g.  &  R.  Rep.  65.  Covert  et  al.  v.  Irxuin  et  al. 
3  Do.  283. 

If  plaintiff  have  a  regular  paper  title,  it  Is  sufficient  if  he  shew  a  right  of  entry. 
Les.  of  Milligan  v.  Dickson,  1  Peters'  Ref)   4.j5,  n. 

A  marked  possession  is  a  good  title  to  "ecover  against  one  who  put  the  plaintifTout 
of  possession,  anil  can  shew  no  better  tile.  Miter,  where  tin-  di-feiidan:  ctn  shew  a 
better  title.   Woods  et  al  .v.  Lane  et  al.  2  Serg.  &  R.  Rep.  53. — Am.  Ed. 

(A)  In  Aew  York,  where  the  fe^a/ title  is  in  the  pldntiff  in  an  action  of  eject- 
ment,the  defendant  wdl  not  be  allowidto  set  np  an  equitithle  title  in  defence  agxinst 
the  action  at  law.  Jackson  ex.  d  Smith  et  al  y.  Pi. -rc'.  2  Johns.  Rep  2.'l.  S  P. 
Jackson  ex.  d.  Potter  et  al  v.  Sissoii,  2  Joims  C<-s.  .i21.  Jukson  ex.  d.  Ke  I'ball  v. 
Van  Slyck,  8  Johns.  Rep.  380.  Jackson  ex.  d.  H  h  ibeiketal.  v.  Deyi   3  l)>  ^2'2. 

So   an  equitable  X\\\t:  which  is  ilouljitui,  cannot  prevail    in  an   actioi    o'   ijn;tment 
against  the  te^al\\\.\Q.  Jackso?i  ex.  d.  Potter  et  al.  v.  Sisson,  2  Johns,  Cas.  3«1, 
3  X 


§^  EJECTMEN'l. 

Part.  If.         During  the  time  that  the  former  doctrine  prevailed,  the  CoarJ 
^vtie'lice.'*  "^vould  not  permit  a  party  who  did  not  mean  to  disturb  outstand- 
_«»____  ing  incumbrances  to  be   turned  round  by  them  ;  and,  therefore, 
if  a  term  were  created   for  particular  purposes,  and  the  person 
entitled  to  the  possession,  subject  to  the  incumbrances,  for  the 
security  of  which  such  term  was  created,  brought  an  ejectment; 
it  was  not  permitted  to  a  third  person,  claiming  under  the  same 
title  as  the  plaintiff,  to  set  up  this  term  as  an  answer  to  the  ac- 
(i)Vifie  Doe  tion.(l)     On  the  same  principle,  if  a  mortgagee  whose  mortgage 
«o^\n-i'.Pcg"-e,  bore  date  subsequent  to  a  lease,  gave  notice  to  the  tenant  that 
IT.  Rep.       \]Q  ^jij  not  mean  to  disturb  his  possession,  but  only  sought  the 
recovery  of  the  rents  and  profits,  the  tenant  was  not  suffered  to 
set  up  his  prior  title  by  lease,  or  in  case  of  a  holding  from  year 
to  year,  to  object  to  the  want  of  notice  to  quit,  and  thereby  de- 
feat the  ejectment  of  the  mortgagee.     The  contrary,  however, 
is  now  established  by  a  variety  of  cases  ;  and  therefore,  if  the 
existence  of  such  term  he  proved  on  the  part  of  the  defendant., 
the  plaintift"  cannot  recover,  unless  there  be  evidence  on  his  part 
for  the  jury  to  presume  a  surrender  of  the  term. 

This  can  never  be  done  where  the  purposes  for  which  the 
term  was  created  are  not  completely  answered ;  so  that  where 
a  term  was  created  for  the  purpose  of  securing  an  annuity,  it 


So  in  J\'ev>  Jersey,  legal  titles  will  not  bend  to  equitable  claims  in  the  trial  of  an 
action  of  ejectment.  Dennex.  d.  Snedeker  v.AUeii,  Penning.  Rep.  35, 

In  Pennsylvania,  a  legal  right  of  entry  is  sufficient  to  maintain  an  ejectment, 
Sims'  Its.  V.  Ii'vine,  3  Dall.  Rep.  425. 

\n  J^i'orth  Carolina,  in  Courts  of  Law,  the  legal  \\\.\e.  will  be  looked  to.  Jilouni 
V.  Haddock,  Rep.  in  Co.  of  Con f.  75.  Johnston  v.  Uunhi,  Tayl.  Rep.  305. 

In  Virginia,  a  decree  of  a  Coxmtii  Court  directing  the  defendant,  a  resident 
within  its  limits,  to  execute  a  conveyance  for  lands  lying  in  another  county,  being 
enforced  only  upon  the  person  of  such  delendant,  and  not  vesting  any  legal  title  in 
the  complainant,  cannot  be  received  as  evidence  in  any  action  of  ejectment.  Aldridge 
et  al.  V.  Giles  et  al.  3  Heii.  &  Munf.  Rep.  136. 

An  outstanding  title  must  be  a  present,  operative,  and  subsisting  title,  otherwise 
the  presumption  will  be  that  such  title  has  been  extinguished.  Jackson  ex.  d  Klock 
etal.  V.  Hudson,  i  Johns.  Rep.  375.  Jackson  ex.  d.  Dunbar  et  al.  v.  Todd,  6  Do.  '257. 

A  mere  intruder  will  not  be  allowed  to  protect  himself  in  the  possession  by  set- 
ting up  an  outstanding  title  in  a  stranger.  Jackson  ex.  d.  Duncan  et  al,  v.  Harder, 
i  Johiis.  Rep.  20i. 

An  outstanding  title  in  a  stranger  cannot  be  set  up  where  there  has  been  an  ad- 
verse possession,  ibid. 

A  mortgage,  before  foreclosure  or  entry,  is  not  a  legal  title,  which  a  stranger  can 
set  up.  Collins  v.  Torrey,  7  Johns.  Rep.  278.  Jackson  ex.  d.  Martin  et  al.  v. 
Pratt,  \0  Do.  381. 

A  Court  of  Law  will  not  permit  a  stranger  and  wrong-doer  to  defend  himself  by- 
setting  up  a  mere  trust  estate  standing  out  in  the  name  of  the  plaintiff's  lessor's 
trustee.  Den  ex.  d.  Snedeker  v.  Allen,  Penning.  Rep.  35. — Am.  Ed. 


EJECTMENT. 


52S 


was  holden  that  during  the  life  of  the  annuitant,  the  heir  at  law  ch.  IX.  s.  2. 
could  not  recover  on  his  own  demise,  though  lie  claimed  subject  ^J"<stand'"s 

teriBS 

to  the  charge  ;(1)  and  where  an  old  term  has  been  from  time  to  ' 

time   recognised  as   existing  till  within  a  few  years  before  the  ,,)Oqp  j^.j^ 
time  of  trial,  and  an  ejectment  is  brought  by  the  trustees  named  HoUdon  v. 
in  it,  with  the  concurrence  of  the  owner  of  the  inheritance,  who  Rep.  C84. 
is  interested  in  upholding  it,  a  jury  will  not  be  directed  to  pre-     ,  _ 

r  o      '      J      J  I  /2^  Doe  dem. 

sume  a  surrender..^2)     But  wliere  it   is  in  proof,  on  the  part  of  (iiaham  w. 
the  plaintiff,  that  the  trusts,  on  which   the  term  was  created,  |^°"'^^^*'*' 
have  been  completely  fulfilled,   so  that  the  trustees  ought  to 
have  conveyed,  the  jury  will   be  directed  to   presume  that  in 
point  of  fact  they  have  done  so,  though   there  is   no  direct  evi- 
dence of  the  factfS)     Thus,  in  one  case,  where  a  man  by  will  (3)  Doe  dem, 
dated  in  Bee.  1777,  devised  certain  premises  to  three  persons  as  Uoyd,  App. 
trustees,  for  his  son's  maintenance  till  he  came  to  twenty-one 
years  of  age,  and  then  to  convey  to  him  ;  the  son  came  of  age 
in  1788,  and  in  1789  made  a  lease,  and  that  lease  being  relied 
on  by  the  lessor  of  the  plaintiff  in  an  ejectment  brought  in  the 
year  1792  ;(4)  and  by  the  same  party,  when  defendant,  in  another  (4)  England 
ejectment  brought  agairtst  him  in  the  year  1796  ;(5)  the  Court  ^J''™;^J^^'*°"i'» 
of  King's  Bench,  in   both  instances,  held   that  the  jury  might  Rep.  683. 
presume  a  conveyance  by  the  trustees,  for  their  trust  having  ex-^j^  q  ^  , 
pired,  it  was  their  duty  to  do  so.*     But  if  the  jury  do  not  find  Bowerman  v. 
such  surrender  as  a  fact,  in  a  special  verdict  or  case,  the  Court  7  x" Ren' o 
in  this,  as  well  as  all  other  instances  of  facts  resulting  from  evi- 
dence, is  precluded  from  drawing  the  conclusion, (6)  Gnodt'itfe 

In  cases  where  a  term  is  in  all  events  to  take  place,  the  onus  ^«™-  J°"<'s 
lies  on  the  lessor  of  the  plaintiff  to  prove  that  the  purposes  for  Rep.  47.' 

•  In  1717,  a  term  of  1000  years  was  created,  which  in  1735  was  assigned  to  se- 
cure an  annuity  to  »4.  and  afterwards  to  attend  the  inheritance.  ^.  died  in  17il 
and  the  estate  remained  undisturbed,  in  the  hands  of  the  owner  of  the  inheritance 
and  her  devisee  from  1735  to  1813,  without  any  notice  of  the  term,  except  that  in 
1801  the  devisee,  in  whoso  possession  the  deedscreating  and  assigning  it  were  found, 
covenanted  to  pro<Iuce  (hose  deeds  when  called  for  In  an  ejectment  by  the  heir  at 
law  of  the  testatrix,  the  estates  devised  being  spent,  the  Court  held  that  a  surrender 
might  be  presumed.  Doe  dem  Burdett  v.  Wright,  2  Barn.  &  Aid.  710.  In  ano- 
ther case  a  term  of  years  was  created  in  1762,  and  assigned  over  to  a  trustee  to  at- 
tend the  inheritaticc  in  1799.  In  1814  the  owner  of  the  inheritance  executed  a  mar- 
riage settlement,  and  in  1816  he  conveyed  his  life  interest  to  a  purchaser,  as  a  secu- 
rity for  a  dtbt,  but  no  assignment  of  the  term,  or  delivery  of  the  deeds  relating  to  it, 
took  place  on  either  occasion.  In  1819,  just  before  the  trial,  an  actual  assignment 
of  the  term  was  made  by  the  administiator  of  the  trustee  in  1799,  to  a  new  trustee 
for  the  purchaser  of  1816.  Held,  that  under  the  circumstances,  on  an  ej«  ctment 
brought  by  a  prior  incumbrancer  against  lli'-  purchaser,  the  jury  were  warranted 
in  presuming  that  the  term  hud  been  surrendered  previously  to  1819.  Doe  detn- 
Putland  v.  Milder,  2  B.  &  A.  782. 


Q24i  EJECTMENT. 

PartTl.  which  it  was  created  have  been  satisfied  ;  but,  where  the  con- 
Outst«ni:na:  veyance  is  conditional  only,  as  in  the  case  of  an  old  mortgage 
__^_^____  for  years,  thp  defendant  must  give  further  evidence  than  the 
mere  proof  of  the  mortgage  deed.  He  should,  in  this  case,  also 
prove  either  a  possession  under  it,  or  payment  of  interest  by  the 
mortgagor,  subsequent  to  the  day  of  redemption,  and  within 
twenty  years;  for  otherwise  the  presumption  is,  that  the  mo-ney 

(1)  Wilson  ^ygg  paid  at  the  day,  and,  consequently,  it  is  no  subsisting  title.(  1) 
Bui.N.p/'  But  here  it  should  be  observed,  that  it  is  not  every  person 
^^^-  who  is  in  condition   to  avail  himself  of  terms  outstanding  in  a 

third  person  ;  a  tenant  is  never  permitted  to  dispute  the  title 
of  his  landlord  ;  nor  a  mortgagor  to  shew  that  he  himself  had  no 

(2)  Lindsey  title  at  the  time  of  making  the  mortgage  ;(2)  and  Lord  Mans- 
Bu1.'n!p.'  field  said,  in  the  case  of  Lade  v.  Holfurd,  that  he  never  would 
I'O-  suffer  a  plaintiff  to  be  nonsuited  by  a  term  outstanding  in  his 

(3)  Viiie  3  own  trustee,  but  direct  the  jury  to  presume  it  surrendered. (3) 
trT'  N^p^  But  it  is  now  held,  that  whether  the  ejectment  be  between  the 
110.  cestui  que  trust  and  his  trustee,  or  between  him  and  any  third 
,.  ^,  ^^^  person,  if  the  term  be  unsatisfied,  the  person,  having  only  an 
Ri  ade  v.        equitable  interest,  cannot  recover.(4) 

r'^^^im  '^^^  inconveniences  attending  the  present  practice  of  requir- 

ing a  strict  legal  title  were  very  ably  pointed  out  by  Mr.  Jus- 

^g^_  ■  ^^  tice  BuLLER,(5)  and  his  argument  would  be  unanswerable,  did 
not  a  Court  of  Equity  interfere  on  this  subject;  and  in  cases 
where  the  circumstances  under  which  the  person  beneficially 
interested  stands,  are  such  as  to  render  it  advisable  that  he 
should  have  the  possession,  extend  its  interference  to  prevent 
an  outstanding  term  from  being  set  up  to  defeat  his  recovery. 


SECTION  III. 

Of  the  evidence  in  ejectment,  hy  landlord  against  tenant. 

Efidenctin  '^"^  action  of  ejectment,  by  a  landlord  against  his  tenant, 
ejtctment.   can  be  brought  only  in  two  instances ;  one,  where  the  demise 

■  is  at  end  by  effluxion  of  time,  or  voluntary  act  of  the  parties; 

(6)  Eiigi-nii    the  other  where  the  tenant  has  committed  a  forfeiture. 

1). s1i.i.',4t'.      ^^  neither  case  will  the  lessor  of  the  plaintiff  be  called  on  to 

Rep.  683.  give  any  evidence  of  his  title  anterior  to  the  lease,(6)  for  neither 
the  tenant,  nor  any  other  person  who  came  into  possession  under 


EJECTMENT.  ggg 

him,(l)  will  be  permitted  to  dispute  tlie  title  of  the  person  from  ch.  IX.  s.  3. 
whom  the  former  took  the  premises  ;  he  may,  indeed,  shew  that  'iy'<J'  n«e  m 

I.I  1  1  ej'ctment. 

the  title  has  since  expired,  but  he  cannot  be  permitted  to  prove  _____^_ 
that  he  originally  had  none.(2)*(i)  (i)  Doe  .i*-m. 

__^ Knight  V. 

Srayih,  4  M. 
•  Ii  has  long  b'^c*n  established  as  a  general  principle,  that  a  Jtenant  shall   not  bt  g^  g,  34, 

permittffl  to  dispute  thi-  title  ol  his  landlonl,  vide  ante,  259  ;  but  in  a  case  which 

occurred  a  I  ,^0!s/  f'riiis  before  ftlr.  Justice  Baylet,  that  learned  Judge  held,  that '^")J5'"^  *''^™ 

•where  a  person  who  iiad  pitid  rent  afterwards  and  befor'-  anv  ejectment  was  brought  W,  f„5K„i,f^m 

refused  to  pay  more  rent,  insisting  t!iat  the  supposed  lanjilord  was  not  entitled,  that  5  ^_  j^  g.  56, 

such  letiisai  enabled  him,  when  defendant  in  ejectment,  to  give  evidence  of  the  title 

of  another,  and  that  in  such  case  the  pay  merit  of  rent  was  on\y  prima  facie  evidence 

of  the  title  of  the  person  to  whom  it  was  paid.     Vide  Doe  clem  Bailiff,  &c.  of  Clun 

V.  Clarke  and  others,  appendix. 

In  a  case  which  atterwaids  came  before  the  Court  of  Common  Pleas,  (^Rogers  v. 
Pitcher,  6  Taunt.  202,)  the  generality  of  this  doctrine  was  explained,  and  ni  some 
measure  limited.  It  was  holden  that  in  that  case  (which  was  an  action  of  replevin,) 
that  the  payment  of  rent  was  only  prima  facie  evidence  of  ownership,  and  did  not 
preclude  the  person  paying  from  shewing  a  title  in  a  third  person  ;  and  the  Chief" 
Justice  GiBBs  said,  "the  paymi  nt  of  rent  raises  a  presumption  that  the  party  re- 
ceiving it  had  a  good  title  to  it,  but  it  is  a  presumption  only,  and  capable  of  being 
rebutted.  The  same  doctrine  which  I  now  lay  down  was  held  by  Bayley  J.  in  an 
ejectment  at  Shreivsbiiry  for  cottages,  for  which  rent  had  been  paid  to  the  corpora- 
tion ;  thf  payment  of  rent  was  certainly /;mnoya«e  evidence  of  their  title.  My 
brother  Bailey  h<ld,  that  the  defendant  having  disclaimed  to  hold  under  the  cor- 
poration, that  was  equivalent  to  a  notice  to  quit,  and  lelt  them  at  liberty  to  shew  who 
was  the  real  proprietor  of  the  soil.  This  doctrine  must  be  taken  with  reterence  to 
the  subject  matter,  and  to  the  case  in  which  it  is  laid  down.  It  was  not  a  case  in 
which  the  tenants  had  been  let  i7ito  possession  by  the  corporation.  If  it  had  been,  I 
sh'>uld  have  thought  that  the  defendants  never  could  have  disputed  the  title  of  the 
corporation  while  they  continued  in  possession  ;  but  these  were  cottages  built  on  the 
waste,  and  the  corporation  claimed  to  be  lords  of  the  manor,  and  the  tenants,  who 
at  first  acquiesced,  being  afterwards  advised  of  other  landlords,  disclaimed  to  hold 
of  the  first." 

Landlord  and  tenant. 

[i)  In  an  action  of  ejectment  by  the  lessor  against  the  lessee,  the  lessee  is  es- 
topped to  say  the  plaiiJiift"has  no  title.  Holmes  v.  Kennedy,  1  Boot's  Rep.  77. 

So  where  a  tenant  has  once  recognised  the  It^ssor  as  his  landlord,  he  cannot  be 
permitted  to  dispute  his  title.  Jackson  ex.  d.  Loivet  al  v.  Reynolds,  1  Caines'  Rep. 
444.  Jackson  ex.  d.  BUecher  v.  Whltford,  i  Do.  '215.  Jackson  ex.  d  Van  Alen 
et  al.  v.  Vosburgli,  7  Johns.  Rep.  18G.  Jackson  ex.  d.  Anderson  et  at.  v.  jWLeod, 
V2Do.  182. 

A  person  purchasing  land  unler  an  execution,  is  substituted  in  the  place  of  the 
defendant,  and  m  ejectment  by  the  landlord,  cann  >t  set  up  a  title  in  a  ihnd  person 
Jackson  ex.  d.  Klein  v    Graha7n,  3  Caines'  Ri-p.  188. 

Where  the  landlord  unites  wiih  the  tenant  in  deiendiiig  an  ejectment,  it  is  snffi- 
cient  to  prove  the  tenant  to  have  been  in  possession  at  the  coinmencement  of  the 
suit,  and  his  possession  is  dt-eraed  that  of  the  landlord,  Jackson  ex.  d.  IVoodv. 
JUarroiu,  1 1  Johns.  R-fj.  434. 

An  acknowledgmeni ,  by  a  defendant  in  an  ejectment,  that  he  went  into  possession 
under  one  of  the  lessor  if  the  plaintiff,  w  cs  held  sufficient  evidence  to  enable  the 
plaintiff  to  recover.    Jack&on  ex.  d.  Sugoharit  et  al.  v,  Dobbin,  3  Johns.  Rep.  223. 


5^(5  EJECTMENT. 

Part.  11.  The  lessor  of  the  plaintiff',  therefore,  in  tiie  first  case  has  onl} 

iistion  ofde-  ^^  P^ove  the  demise,  and  that  the  term  has  been  determined.  This 

iiiise.        may  be  done  either  by  proving  the  counterpart  of  the  lease  by  the 

subscribing  witness,  in  cases  of  a  demise  by  deed,  (which  seems 

93^1^  t'**"'^'*^  be  suflBcient  without  any  notice  to  produce  the  original  ;)(1) 
or,  where  the  demise  was  by  parol  for  a  certain  time,  by  some 
person  present  at  the  making  of  it.  In  cases  of  tenancy  from 
year  to  year,  which  almost  every  demise  is  now  deemed  to  be, 
unless  some  definite  time  be  fixed  on,  the  lessor  of  the  plaintiff 
must  also  prove  that  the  demise  has  been  determined  by  a  re- 
gular notice  to  quit.     The  notice  which  is  generally  required  is 


Where  a  person  has  entered  into  the  possession  of  land  under  another  and  ac- 
knowledged his  title,  he  cannot  set  up  in  defene>-  to  an  action  oF  ejf-ctnaent  against 
him  an  outstanding  title  in  a  third  person.  Jackson  ex.  d  Smith  et  al.  v.  Ste-tvart, 
6  Johns.  Rep.  34. 

So,  in  PeTiiisylvama.  Les.  of  Dimond  v  Enoch,  nitidis.  Rep.  356. 

So  a  tenant  cannot  resist  his  landlord's  title  by  virtue  of  an  adverse  title  acquired 
during  his  Itase.   Galloway^s  les  v.  Og'/e,  2  Binn.  Rep.  468. 

So  a  claim  or  title  which  cannot  be  set  up  by  a  person  while  in  possession,  cannot 
be  set  up  by  another  who  comes  into  possession  uuder  him.  Jackson  ex.  d.  Dun- 
can V.  Harder,  4  Johns.  Rep.  '202. 

So  where  the  defendant  sohl  his  right  'n  the  premises  to  the  plaintiff,  and  agreed 
to  deliver  up  the  premises,  and  afterwards  refused,  the  defendHnt  was  held  incom- 
petent to  prove  a  title  in  a  third  person    JVsod  v.  Hyatt,  ibid  313. 

So  also  as  to  a  purchaser  at  a  Sheriff's  sale.     Jackson  ex.  d.  Kane  v.  Sternberg, 

1  Johns.  Cos.  153. 

"Where  the  defendant  acknowledged  that  he  got  his  title  from  one  who  claimed 
to  hold  as  a  devisee  unfler  ihe  will  of  tlie  grantor  to  the  husband  of  demandant, 
whose  interest  was  sold  by  the  Sheriff,  this  was  held  to  be  a  recognition  of  the  title 
under  which  the  husband  of  the  demandant  in  dower  claimed.  Embree  v.  Ellis,  2 
Johns.  Rep.  n^. 

If  tiie  tenant  have  enjoyed  the  knd,  he  cannot  repel  the  landlord's  cl.iim  for 
rent,  by  saying  he  had  nothing  in  the  land,  &c.  Watson  et  al.  v.  Mexaiider,  1  Wash. 
Rep.  440. 

JiUter,  if  he  be  evicted.  Rons  v.  Gill  et  ux.  ibid.  114. 

But  in  an  action  on  the  case  on  a  Statute  (of  Vermont)  to  recover  the  mesne  pro- 
ilts  of  land  levier!  upon  by  execution,  llie  defendant  is  not  estopped  from  shewing 
that  he  had  no  title  to  or  interest  in  the  land.     Boxune  v.  Graham,  2  Tyl.  Rep.  418. 

Where  a  tenant  who  had  been  many  years  in  possession  ol  land  under  the  titles 
of  the  supposed  proprietary,  applied  to  liim  as  the  real  owner  to  buy,  and  requested 
to  be  considered  as  his  tenant  ;  in  an  ejectment  brought  by  the  proprietary  against 
the  tenant,  it  was  held  that  the  tenant  mitjht  shew  that  he  had  made  the  application 
under  a  mistake,  and  prove  a  title  out  of  the  proprietary,  though  he  could  not  set 
up  an  adverse  possession  of  twenty  years.     Jackson  ex.  d.  Vieley  et  al.  v.  Cuerdon 

2  .Tohns.  Cas.  353. 

Evidence  of  an  agreement  for  a  lease,  between  the  lessor  in  ejectment,  and  the 
tenant,  is  not  sufficient  to  enable  the  plaintiff  to  recover  the  possession,  when  there 
is  no  proof  that  any  lease  was  ever  executed,  or  rent  paid  ;  and  the  tenant  claimed 
to  hold  adversely.  Jackson  ex.  d.  Southamptori  v.  Cooleii,ibid,  223. — Am.  Ed. 


EJECTMENT.  ggy 

halt' a  year,  expiring  at  the  same  season  of  the   year  as  that  cii.ix.  s,  3. 
when  the  defendant  entered  ;(l)  but  where   the  custom  of  the^'"''''=^°^"'^- 

country  requires  a  longer  or  shorter  time  of  notice,  it  has  been  ' ~~ 

said,  that  such  custom  will  control  the  general  rule.(2)(A)  iilm,  Fimver 

In  cases  of  this  description,  it  is  often  difficult  to  give  direct^- '^^rby,  i 
evidence   of  tlie  demise,  and  where   that  cannot  be  done,  the    '    '^''' 
subsequent  payment  of  rent  will  be  prima  facie  evidence  of  an  (2)  Vide  Roe 

'  '     •'  r  J  ilem.  Brown 

_^ V    Wilkinson. 

Bull.  Co.  Lit^ 

JS,^otice  to  quit.  «"''  If"^  '''^"'• 

Henderson 

(fc)  Notice  to  quit,  is  only  necessary  where  the  relation  of  landlord  and  tenant  suIj-  ""•  tlliarnock. 


sisls  between  the  parties.  Jackson  ex.  d.  Philips  v.  Mdridi,  13  Johns.  Rep.  106. 

A  tenant  at  ivill  is  not  entitled  to  notice  to  cjuit.  Juckaon  ex.  d.  Van  Denberg  v. 
Brudtji  Cuiufs' Hep.  iCO. 

Sed  vide  Jackson  ex.  d.  Livingston  el  al.  v.  IVilsey  et  al.  9  Johns.  Hep.  2Q7,  in 
whicli  llie  Court  seem  inclined  to  the  opinion  that  he  is  enlilled  to  notice. 

Nor  is  a  bailiff  or  servant.  Jackson  ex.  d.  Fitzroy  v.  Sample,  1  Johns.  Cas.  231. 

Nor  is  a  tenant  who  claims  to  hold  adversely.  Jackson  ex.  d.  Dill  v.  Tyler, 
52  Johns.  Rep.  444. 

To  entitle  the  defendant  to  notice  there  must  be  a  privity  either  of  contract  or  of 
estate,  bitween  the  lessor  and  the  defendant.  Jackson  ex.  d.  Ferres  v.  Fuller,  ^y 
Johns.  Rep  215.  S.  P.  Jackson  ex.  d.  Whitlock  v.  Deyo,  3  Johns.  Rep,  424. 

A  parol  gift  of  land  only  creates  a  tenancy  at  will  ;  if  the  donee  lease  and  tin; 
donor  do  not  ratify  iiis  act,  the  mere  permitting  the  lessee  to  build  aud  enjov  under 
the  term  will  not  prevent  the  donor  from  legally  devising  the  land,  and  his  devisee 
mny  recover  without  notice.  Jackson  ex.  d.  Van  Alen  v.  Rogers,  I  Johns.  Cas.  33. 
3  JV".  York  Cas.  in  Er.  314. 

A  tenant  at  sufferance,  is  not  entitled  to  notice  lo  quit.  Jackson  ex.  d.  Van  Cort- 
landt  V.  J^arkhurst ,  5  Johns.  Rep.  128. 

A  tenant  at  will  is  considered  as  holding  from  year  to  yc:ir  only  for  the  purpose 
of  a  notice  to  quit;  but  he  has  no  right  to  such  notice  after  he  has  determined  the 
will  by  an  act  of  voluntary  waste.  Plddips  v.  Covert,  7  Johns.  Rep.  1. 

But  where  a  person  entered  on  land  with  the  permission  of  the  owner  as  a  mere 
occupant,  and  without  any  reservation  of  I'ent,  and  made  improvemenis  aftei' 
eighteen  years  possession  he  wos  to  be  considered  as  a  tenant  from  year  to  year  and 
entitled  to  a  notice  to  quit.  Jackson  ex.  d.  Livingston  v.  Bryan,  1  Johns.  Rep.  322. 

So  where  A.  entered  on  the  land  of  B.  with  his  permission  as  a  mere  occupant 
without  any  rent  reserved  ;  B.  sold  to  C.  under  whom  A.  continued  in  [jossession, 
and  afterwards  sold  to  D.  who  took  possession  and  claimed  to  hold  under  the  deed 
from  A. ;  this  disclaimer  of  tenancj'  was  held  sufficient  to  dispense  with  a  notice  to 
quit.  Jackson  ex.  d.  Locksell  v.  Wheeler,  6  Johns.  Re/j.  272. 

Where  the  defendant  went  intopossessionof  land,  by  the  consent  of  the  owner  and 
conliiiued  so  fifteen  years,  improving  the  premises  under  an  expectation  to  hold  the 
land  for  life,  he  was  entitled  to  a  notice  to  qui',,  though  no  rent  were  reserved.  Den 
ex.  d.  Mackey  v.  JMackey,  Penning.  Rep.  420 

The  notice  to  quit  (ond'-r  lli.-  Act  of  A-'senddy  in  Petim^ylvania)  must  be  ''iven 
three  months  before  the  end  o{  the  term.    Broion  v.  Vaiihorn,  I  Binn.  Rep.  334,  n. 

Notice  to  quit  given  by  a  lessor  to  his  lessee  who  has  continued  to  pay  him  his 
annual  rent,  is  sufTici-nt  though  another  person  i'  possession  of  the  premises. 
Jackson  ex.  d.  Uviiigston  v.  Baker.  10  Johns.  Rep.  270. 

Tenant  at  sufT^.'.'ance  noi  entitled  to  notice  lo  quit.  Jackson  ex.  d.  Anderson  et  al. 
V.  M'Leod,  12  Johns.  Rep.  182. 


Peak.  Cas.  5. 


528  EJECTMENT. 

Part  II.  antecedent  demise  from  year  to  year  ;*  but  to  enable  the  party 
^°"'''''"*i""'^  to  shew  on  whose  behalf  the  rent  was  received,  notice  should 
be  given  to  the  defendant  to  produce  his  receipts.  If  one  joint 
Cii'ker.  "^  ''*^'^*^  has  been  paid  to  an  agent  of  seveial  parties  on  their  behalf, 
Giani,  12  though  such  agent  was  appointed  by  the  several  parties  at  dif- 
'  ~  ferent  times  such  payment  will  be  evidence  of  their  joint  title. (1) 
(2)Roedpm.       After  this  general  evidence  of  a  demise  from   year  to  year, 

ClalgeS  V.  .  r      r  ■  •       i         •  .  .  ,  . 

Fostfr,  13  the  proot  ot  a  notice  to  quit  having  been  served  on  the  tenant 
E.St,  405.      himself,  and  no  obiection  made  by  him  at  the  time, (2)  has  been 

Doe  rlein.  .  •'  .  •'  'v    ^ 

Leic.sier  held  to  raif.e  a  presumption  that  the  year  expired  at  the  time 
2  Tamn'  109  inentioned  in  it,  and  to  make  it  incumbent  on  the  tenant  to  shew 
Doe  ft  em.  the  Commencement  of  the  tenancy,  if,  indeed,  it  did  commence 
V.  Harris        ^^  another  season  ;t  and  even  where  a   notice  was  general,  to 

cited  1  T.' 

Rep.  161. 

Where  ^.,  a  lessee,  agreed  to  sell  the  lease  to  B.  for  a  certain  sum,  and  endorsed 
his  name  on  the  lease,  and  dt  liTered  it  to  JS.  vho  paid  him  the  purchase  luoney, 
ami  agreed  to  pay  the  rent  in  arrear,  and  to  become  due  on  the  lease,  it  was  held 
that  this  was  an  agreement  for  a  sale,  and  that  the  relation  of  landlord  and  tetiant 
did  not  txist  between  them,  and  that  therefore  B.  was  entitled  to  a  notice  to  quit. 
Jackson  ex.  d  Steiuart  v.  Kingdey,  17  Johns.  Rep.  158. — Am.  Ed. 

•  This  is  in  all  cases  prima  facie  evidence  of  a  tenancy  from  year  to  year,  and  we 
have  before  had  occasiun  to  remaik  (ante,  257,)  ihi<t  after  such  evidence,  the  defend- 
ant could  not  turn  thi  plainiiff  round  by  general  e^idence  of  an  agreemetit  in  writing 
which  h>  ha<i  not  given  notice  to  produce,  and  of  which  he  was  not  prepared  to  give 
regular  evidence.  It  may  be  also  here  observed,  th^t  where  a  tenant  bad  been  let 
into  possession  of  premises  under  a  promise  to  execute  an  agreenieni  and  bring  a 
surety,  but  had  iifterwards  refused  to  do  so,  the  Com !  h<  Id  this  cotn'uet  on  his  part 
to  be  a  rescinding  of  the  agreement,  and  to  make  hira  a  trespasser,  or  at  least  a 
mere  tenant  at  will,  so  that  the  lamllord  might  eject  him  withuut  a  regular  half- 
year's  notice,  or  any  evidrrice  of  the  contents  of  the  paper  writing  which  he  had  re- 
scinded. Doe  dem.  Bingham  v.  Cartwright,  3  £.  &  A.  326. 

■j"  Difficulties  have  frequently  arisen  where,  by  the  custom  of  the  country,  the  te- 
nant enters  upon  different  parts  of  the  premises  at  different  pcrioils  of  the  year.  A 
case  of  this  kmd  lately  occurred  ;  the  tenant  had  agreed  "  to  enter  on  the  tillage 
land  at  Candlemas,  and  on  the  house  and  all  the  other  preniist  s  at  Lady-day  follow- 
ing; and  that,  when  he  left  the  farm, he  should  quit  the  same  according  to  the  tiroes 
of  entry  as  alorf-said  ;"  the  rt  nt  was  reserved  half-yearly  at  Michaelmas  and  Lady, 
day.  The  landlord,  half  a  year  before  Lady-day,  but  less  than  half  a  yi  ar  before 
Candlemas,  gave  notice  to  quit  at  the  end  of  tlu-  yar;  and  the  Court  held  this  no- 
tice to  be  good;  the  taking  being  in  substanc-  trora  Lady-day,  with  a  privilege  for 
the  in-coming  tenant  to  ei  ter  on  the  arable  land  at  Candlemas  for  the  purpose  of 
ploughing.  Doe  dem.  Strickland  v.  Sperice,  6  East,  120.  But  in  a  subsequent  case 
i^Doe  dem.  Lord  Bradford  \ .  Watkins,  7  East,  551,)  where  a  demise  was  made  in 
/a72»ari/ of  a  dwelling-house  and  other  buildings,  for  the  purpose  of  car.  ying  on  a 
manufacture,  together  with  certain  meadow,  pasture,  and  bh  achiog-grounds,  for 
thirty-five  jears,  tn  commence,  as  lo  the  n-eadow,  from  25ih  of  December  last ;  as 
to  the  pasture,  trom  25ih  o\'  March  next ;  and  as  to  the  rest  of  th^  pr  mises,  from 
the  1st  ni May,  reserving  the  first  halt-year's  rent  'u  the  da)  0  Pen'ecosi ,  the  other 
at  Martinmas :  it  was  held,  that  the  substaalial  titB«  sf  eotr^  to  which  the  notice 


EJECTMENT,  ggg 

quit  at  the  end  of  the  current  year,   and  the  defendant  was  at  ch.IX.  s.  3. 

the  distance  of  near  a  year  afterwards  personally  served  with  a  ^"''ce  to  quit. 

declaration  in  ejectment,  wherein  the  demise  was  laid  six  months 

after  the  service  of  the  notice  without  objection  on  his  part  to 

the  notice.  Lord  Ellenborough  left  it  to  the  jury  to  consider  {^oe  dem. 

whether  that  circumstance  did    not  amount  to  an  admission,  on  v.  B«ker, 

the  part  of  the  tenant,  that  the  tenancy  determined  at  the  time  l^''"'^^' 

mentioned  in  the  declaration.     But  if  the  notice  was  left  at  his 

house,  the  lessor  of  the  plaintiff  will  be  called  on  to  give  some 

further  evidence  of  the  commencement  of  the  term.(l)     When  (f)  Doe  •«• 

it  is  uncertain  whether  the  year  expired  at  new  or  old  Lady-day,  gCamp'b  388, 

a  notice  to  quit  "  on  the  25th  of  March,  or  the   8th  of  j9pril,'^ 

has  been  holden   to   be  sufficiently  certain  ;  and,  if  delivered 

half  a  year  before  the  first  of  those  days,  throws  it  on  the  tenant 

to  shew  that  it  expired  at  some  other  time.(2)     So  where   the  (^i^t^ewso^T' 

year  expired  at  old  Lady-day,  and  the  notice  was  to  quit  atw.  Wnght- 

Lady-day,  without  saying  old  Lady-day,  the  notice  was  holden  '^^^.'s.    ^^' 

to  be  sufficient  to  maintain  an  ejectment  after  old  Lady  day .(3) 

It  is  sufficient  if  this  notice  were  left  at  the  dwelling-house  J  {„  ^enn^d.' 

of  the  tenant  with  a  servant  there,  though  such  dwelling  house  }V'l'an^- 

formed  no  part  of  the  demised  premises  ;(4)  and  if  there  be  aciou.  Sum, 

joint  demise  to  two  persons,  one  of  whom  resides  on   the  P''^- ^^o  cited*' 

mises  and  the  other  elsewhere,  a  service  on  him  who  resides  on  Denn.  d.  AI- 

the  premises  is  sufficient  for  the  jury  to  presume  that  it  reached  ^"^IJ^J- ^  g^ 

the  other  tenant  ;(5)  and  where  the  immediate  tenant  has  under-  East,  32 G.  3. 

let,  the  notice  to  quit  by  the  landlord  must  be  to  the  person  to^jjonesdem. 

whom  he  demised,  and  not  to  the  actual  tenant  in  possession,  Griffitiist). 

between  whom  and  the  landlord  there  is  no  privity.(6)  11.464! 

As  to  the  person   by  whom   the  notice  may  be   given,  it  has 
.  ,    ,  .  ^,   V.  ^    ■^      ,  .  .  \-        e       ,  .    (5)  Doedera. 

been  held  that  one  tenant  in  common   may  give  notice  tor  his lo,()  Brad- 

t'ord  V.  Wal- 
'  ~ kins,  7  Eastj 

ought  to  refer  was  the  1st  of  Mai/,  whr  n  tlie   house  and  maiiufHCturing  buildings 

■were  entered  upon  ;  and  in  anoihcr  case  (i)oe  de7n.   Heapy  v.  Hoivard,  11  East  (6)  Roe  T). 

498,)  the  demise  being  oi'a  messuage  and  several  closes  of  land  thereunlu  belongiiig,  Wiggs,  2  N. 

containing  thirteen  acres,  for  eleven  years,  to  hold  the  lands  from  tiie  2d  '>f  Febni-'^^V-  "^     ' 

I    ■      I  ■       I  .        L-         .\      ■,        c   mr  ^  I  .    •    ,.    Pleasant  dem, 

fl7't^,  and  the  house  and   other  premises  trom  the   1st  nl  May,  r^nt  payalilr  hiH-Tj     . 

yearl),  at  Micliaelmas  and  Lady-day,  and  a  notice  was  given  to  quit   on  llie  Isl  of  Heiison   14 
May,  or  whenever  else   his  tenancy  should  expire,  it  was  objected  at  ihe  trial  that  East,  '234, 
the  n'ltice,  not  having  been  given  six  months  before  the  2d  of  February,  when  the 
land,  which  it  was  contended  was  the  principal  subject  of  the  demise,  was  entered 
upon,  was  not  sufficient  ;  Mr.   Baron  Wood,  who   tried   the  cause,  nonsuitrd  the 
plaintiff:  and,  on  a  motion  for  a  new  trial,  the  Court  ix'fused  a  rule,  saying,  it  must 
in  all  cases  depend  on  the  relative  value  and  importance  of  the  house  and  land  to- 
gether, which  was  the  principal    and  which   the  accessary,  and  th^-t  it   the  pliuntiif 
disputed  the  fact  assumed  by  (he  Judge,  that  the  land  was  the  principal,  he  should 
hare  desired  him  to  leave  it  to  the  jury. 
37 


-530  EJECTMENT. 

Pari  II.  moiety,(l)  but  if  there  are  two  or  more  joint-tenants  all  must 
Notice  toquit.j^jj^^  A  notice  given  by  one  on  behalf  of  himself  and  otherSj 
"""    [         without  their  authority,  is  so  absolutely  void  as  not  to  be  made 

(1)  Cuttings  -^ 

V.  Deib\,       good  by  the  subsequent  assent  of  the  others. (2)*     But  if  an  agent, 
2  Biac.  1073.  ^vjjQ  i^j^s  jjggjj  appointed  by  some  of  the  joint-tenants,  give  the 

(2)  Kight        notice,   and  the  others  afterwards  recognise  his  authority,  and 
V.  CotUri,      act  upon  it,  that  is  sufficient;  and  where  a  re\.eiver  was  ap- 

^"'  pointed  by  the  Court  of  Chancery,  and  he  let  the. land,  and  af- 

ciem.  Kui'"v.  terwards  gave  notice  to  quit,  his  notice  was  held  sufficient  with- 
Woodwaid,    out  any  such  evidence  of  recognition. (3) 

3B&i\ 

689.  If  there  is  a  subscribing  witness  to  the  notice,  he  must  he 

Dnedem.       called  or  his  absence  accounted  for,  although  the  tenant  made 

Sjkes,  hart.  .  ,         .  „  .  ** 

V.  Dvnntoid,  no  objection  at  the  time  of  service. 

2M  &  S.  62.      jjj  cases  where  the  tenant  has   absolutely  denied  the  title  of 

TllSClfl  1  ITU-T* 

his  landlord,  as  if  he  has  attorned  to  another  person,  no  notice 
WBui.N.     at  all  is  necessary  ;(4)  but  when  on   the  death   of  the  original 

landlord,  leaving  a  will,  there  w'ere  disputes  between  his  heir 
li^-,^°^  *'^"^'  and  devisee  as  to  its  validity,  and  the  tenant  being  applied  to 

Williams  _  •' '  ,    _  i5      rr 

1).  Pasquaii,  by  the  latter,  admitted  the  title  of  the  original  lessor,  but  re- 
fge'^'''^*^'**  fused  to  pay  the  devisee,  merely  on  account  of  the  dispute  be- 
tween him  and  the  heir,  it  was  determined  by  L'ord  K.enyon,  at 
!l?m^  cSl  ^'^f*'^  ^rius,  that  this  was  not  such  a  denial  of  title  as.to  enable 
V.  Cordwent,  him  to  maintain  an  ejectment  without  any  previous  notice,(5) 

'^'''  ■  The  defendant  may  sometimes  avoid  the  effect  of  this  notice 
(')  ^""*^**  to  quit,  by  shewing  that  the  lessor  of  the  plaintiff  has  waved  it 
■VViiiingai. ,  by  some  subsequent  act ;  as  if  he  has  received,(6)  or  distrain- 
iH.Biac.sii.ej^^T^-)  Qj.  brought  covenant, (8)  for  rent  accrued  subsequent  to 
(8)  Cromptnn  the  time  of  quitting  mentioned  in  the  notice,  or  done  other  acts 
V  'y'"*''"^''  whereby  he  has  acknowledged  the  defendant  to  be  his  tenant 
3.  Running-    subsequent  to  that  time  ;{l)  but  the  payment  of  rent  due  before, 

ton's  Eject. 

80.  

•  The  principle  laid  down  in  the  case  cited  seeras  to  go  to  this  extent,  and  was 
so  considered  in  thi'  subsequent  case  of  King  v.  JVood-uiard,  but  it  should  be  ob- 
serve<l  that  the  case  oi' Fis he"  v.  Cuthell,  was  not  a  mere  notice  to  quit,  but  a  noiicc 
to  deleriiiiiie  a  tenancy  by  the  landlord  or  tenant, thiir  heirs,  executors,  &c.  giving 
six  inoiuhs  notice  und'  r  his,  her,  or  their  respective  hand  or  hands;  and  the  land- 
lord having  divised  to  three  persons,  and  two  only  having  given  the  notice,  the 
Court  appear  to  have  laid  particular  stress  on  these  words. 

(Z1  A  notice  to  quit,  at  'he  end  of  a  certain  year,  is  not  waved  by  the  landlord's 
pernutting  the  l<n;u(t  to  r>main  in  possession  an  entire  year  after  the  expiration  of 
the  notice,  notwithstanding  the  tenant  iield  by  an  improving  lease.  Hoggs  adm.  t. 
Black,  I  Binn.  Rtp.  333. 

A  notice  to  quit  must  be  given  in  the  case  of  a  lease  for  a  year,  atid  from  year  to 
year,  as  long  as  bo'h  parties  [ilease,  and  so  where  the  lease  is  to  one  to  hold  during 
the  pleasure  of  the  lessor.  Jieilford  v.  J\l' Elherroji ,  2  Serg.  i^  R,  Rep.  49. 


EJECTMENT,  ggl 

though  made  afier  the  expiration  of  the  time  of  quitfing,  does  Ch.  IX.  9.3. 
not  avoid  the  notice  ;(1)  nor  will  a  landlord  who  has  given  one  ^^li'overbie'^'^ 
notice,  and  brought  an  ejectment  on  it,  lose  the  benefit  of  it  by   und.iSiat. 
giving  another  notice  to  quit  at  a   subsequent  day,  under  an 
idea  that  he  should  not  be  able  to  prove  the  first, (2)  |~* 

It  has  hitherto  been  the  practice  for  the  lessor  of  the  plaintiff  Kiac  31-2. 
to  be  nonsuited  if  the  defendant   does  not  appear,  and  after-  C-^)  Do.-  dera. 

,  ,.  .  ,  1       •  •  11  Williams  t). 

wards  to  take  a  verdict  against  the  casual  ejector,  in  all  cases  Mmnpiireys, 
■whether  the  ejectment  were  defended  or  not,  and  to  bring  an '-^  East,  237. 
action  for  the  mesne  profits:  but  an  Act  of  Parliament  has  i  Geo.  4,  "" 
lately  passed  which  gives  furtlier  remedies  to  landlords  in  eject- *^-  ^'^^ 
ment,  and  enacts,  "  That  whenever  it  shall  appear  on  the  trial 
of  any  ejectment  by  a  landlord  against  a  tenant,  that  such  tenant 
or  his  attorney  hath  been  served  with  due  notice  of  trial,  the 
plaintiff  shall  not  be  nonsuited  for  default  of  the  defendant's 
appearance,  or  of  confession  of  lease,  entry  and  ouster  ;  but  the 
production  of  the  consent  rule  and  undertaking  of  the  defend- 
ant, shall  in  all  such  cases  be  sufficient  evidence  of  lease,  entry 
and  ouster ;  and  the  Judge,  before  whom  such  cause  shall  come 
on  to  be  tried,  shall,  whether  the  defendant  shall  appear  upon 
such  trial  or  not,  permit  the  plaintiff  on  the  trial,  after  proof  of 
his  right  to  recover  possession  of  the  whole,  or  of  any  part  of 
the  premises  mentioned  in  tiie  declaration,  to  go  into  evidence 
of  the  mesne  profits  thereof,  which  shall  or  might  have  accrued 
from  the  day,  or  expiration  or  determination  of  the  tenant's  in- 
terest in  the  same,  down  to  the  time  of  the  verdict  given  in  the 
cause,  or  to  some  preceding  day,  to  be  specially  mentioned 
therein;  and  the  jury  on  the  trial,  finding  for  the  plaintiff,  sliall 
in  such  case  give  their  verdict  upon  the  whole  matter,  both  as 
to  the  recovery  of  the  whole  or  any  part  of  the  premises,  and 
also  as  to  the  amount  of  the  damages  to  be  paid  for  such  mesne 
profits  :  provided  always,  that  nothing  therein  contained  shall 
be  construed  to  bar  such  landlord  from  bringing  an  action  of 
trespass  for  the  mesne  profits  which  shall  accrue  from  the  ver- 
dict, or  the  day  so  specified  therein,  down  to  the  day  of  deli- 
very of  possession  of  the  premises  recovered  in  the  ejectment." 

In  cases  oi forfeiture,  by  breach  of  the  covenants  in  the  lease,  ^"  ^  forfei- 


ture. 


But  where  the  lease    is  to  expire  at  a  particular  time,  the  lessor  may  maintain 
ejecimeiit,  without  notice  to  quit.  ihid. 

If  a  Itase  bi'  lor  a  year,  anil  the  tenant  is  aflerwards  permitted  to  remain  from 
year  to  year,  a  notice  ni  the  fii'st  month  of  a  new  year  to  quit  is  illesul.  The  tenant" 
has  a  right  to  hold  for  that  year,  Fahneslock  e.t  al.  v.  Faustetumcv,  .')  >SVr,f .  cJ  R. 
Rep.  174,    Et  vide  Logan  y,  Herron,  3  Do,  459.— Am,  Ed. 


w 


533  EJECTMENT. 

Part  II.     the  lessor  of  the  plaintiff  must  first  prove  the  lease,  and  then 
"t*,."'/''  tlie  breach  complained   of,     The  declaration   in  ejectment  not 
conveying  any  intelligence  to  the  defendant  of  the  cause  of  for- 
feiture, the  defendant,  in  cases  where  there  are  many  covenants, 
is  often  at  a  loss  to  know  to  which  he  is  to  apply  his  evidence  ; 
and,  to  prevent  the   inconvenience  which  this  would  occasion, 
the  Court  will  sometimes  oblige  the   plaintiff  to  give  the  parti- 
culars in  wri*ting  of  the  breaches  he  means  to  give  in  evidence; 
and  after  that  he  will  be  precluded  from  giving  evidence  of  any 
(I)  Vide  Doe  other.(l) 

IK  Phil  ps,  The  most  usual  cause  of  re-entry  is  that  for  non-payment  of 

%T  ^^^'  rent,  the  landlord's  remedy  on  which  is  made  much  more  easy 
by  the  Stat.  4  Geo.  Q,  c.  28,  for  by  that  Statute,  if  there  be  a 
power  of  re-entry  in  default  of  payment,  and  it  be  proved  "  that 
half  a  year's  rent  was  due  before  the  declaration  was  served, 
and  that  no  sufficient  distress  was  to  be  found  on  the  demised 
premises  countervailing  the  arrears  then  due  ;"  the  landlord 
need  not  prove  all  the  necessary  previous  steps  which  were  re- 
quired by  the  common  law.  In  this  case,  he  has  only  to  prove 
the  above-mentioned  facts,  viz.  the  arrear  of  rent,  and  the  de- 
ficiency of  property  for  a  distress  after  the  rent  became  due, 
and  about  the  time  when  the  right  of  re-entry  commenced  for 
(2)Doe(lem.  default  of  payment, (2)  and  also  the  time  of  serving  the  decla- 
Fuihan,  15  ration,  which,  by  that  Statute,  may  either  be  in  the  usual  way* 
East, 286,  "'qj.  ]„  ^dse  the  same  cannot  be  legally  served,  or  no  tenant  be 
in  actual  pessession  of  the  premises,*  by  affixing  the  same  upon 
any  demised  messuage  ;  or  in  case  such  ejectment  shall  not  be 
for  the  recovery  of  any  messuage,  then  upon  some  notorious 
place  of  the  lands,  tenements,  or  hereditaments,  comprised  in 
such  declaration  of  ejectment,"  which  is  directed  to  "  stand  in 
the  plact  and  stead  of  a  demand  and  re-entry."  As  to  what 
cases  shall  be  deemed  within  the  Statute,  it  was  lately  holden 
by  three  Judges  of  the  King's  Bench  (Lord  Ellenborough 
dissenting,)  that  even  if  the  proviso  for  re-entry  be  in  case  the 
rent  shall  be  in  arrear  twenty-one  days,  being  lawfully  demanded, 
no  demand  was  necessary  ;  whereas  his  Lordship  thought  that 
some  demand  was  necessary,  though  not  the  strict  formal  de- 
mand as  to  time,  place*  &c.  which  was  required  by  the  common 

(3)Doe<lem.  law.(3) 

•."a'i\,oVi„,       Ig  cases  not  within  the  Statute,  viz.  where  there  are  sufficient 
2M.  &S.       goods  to  countervail  the  rent,  the  landlord  is  still   put  to  all 

•  Vide  Stat.  11  Geo.  2,  c.  19,  ami  5"  Geo.  3,  c.  52,  uiiich  gives  a  summary  re- 
medy to  justices  of  the  peace,  where  the  premises  are  deserted. 


EJECTMENT.  ggg 

the  formality  of  proof  with  which  he  was  burthened  by  the  com-  Ch.  IX.  s.  3. 
mon  law.(l)     He  must  prove  a  demand  by  himself,  or  by  some      \y'g'^'^'" 

person  duly  authorised  by  letter  of  attorney  from  him  (which  ^ 

should  be  notified  to  the  tenant,  and  be  ready  to  be  produced 
if  he  requires  it)  of  the  precise  sum(2)  which  is  due,  on  the  very  (i)  Doe  dem. 
day  when  the  rent  is  payable  to  save  the  forfeiture,  at  a  conve- ^^I'^'^ig^' 
nient  time  before  sun-set,(3)  as  if  the  proviso  be  for  re-entry,  if7T.  Rep.  117. 
the  rent  is  behind  thirty  days  after  the  day  of  payment,  the  de-  gg',*^      ^*^' 
mand  must  be  on  the  thirtieth  or  last  day.     Therefore,  a  de- 
mand of  a  larger  or  a  less  sum,  or  on  a  day  before  or  a  day  after,  v.  Winston 
will  not  support  the  ejectment.  Cio.  Eiiz. 

Where  no  particular  place  is  appointed,  it  must  be  proved 
that  the  demand  was  made  on  the  land,  and  at  the  most  noto-  {^)  ^^'■■?'  ^" 

Lit.  202,  a. 

nous  part  of  it ;  as,  if  there  be  a  dwelling-house,  the   demand  Wood  v. 
must  be  at  the  front  door  ;(4)  but,  if  a  particular  place  be  ap-  ^j'^^^'.^ro 
pointed  for  payment,  the  demand  must  be  made  at  that  place  ;(5)  Doe  dem. 
and  so  strict  is  the  law  in  the  case  of  forfeitures,  that   it  inust^^'^^jj^^g 
be  proved  that  the  demand  of  rent  was  made,  though  no  person  ubi  supra, 
was  on  the  land  to  pay  it  ;(6)  while,  on  the  other  hand,  if  it  ap-  ,!^\  f^o.  Lit 
pear  that  the  tenant  tendered  the  rent  at  any  time  during  the-02,  a. 
last  day,  either  on  the  land  or  elsewhere,  it  is  sufficient  on  his  (5)  co.  Lit. 
part  to  save  the  forfeiture.  (7)  201,  b. 

The  law  leans  as  much  as  possible  against  forfeitures,  and  (c)  i  Roll, 
therefore  where  a  lease  contains  a  proviso  for  re-entry,  the  proof  "^'^'^  ^^^• 
of  acceptance  of  rent  accrued  subsequent  to  the  cause  of  forfei- (7)  Co.Lit. 
ture  will  furnish  a  sufficient  defence  to  the  action,  for,  by  this^*^''  ^"  **''• 
act,  the  lessor  waves  his  right  of  entry.(8)(m)     But  it  should  (8)  Gooringht 

dem.  Walker 

__^ r>.  Davids, 

Cow  p.  803. 

\m)  The  acceptance  of  rent  after  a  forfeiture  is  an  equivocal  act  and  may  or  may'\^^'  "en». 
not  anaount  to  a  waver  of  the  forfeiture,  according  to  the  quo  animu  with  which  ihe  .^'  '^'^,^"^  '^• 
rent  was  received.  Jones'"  devisees  v.  Roberts,  3  Hen.  &  JMnnf.  Rep.  436.  2  F   Rep 

In  Virgiiua,  if  the  land  be  forfeited  for  non-payment  of  quil  rents,  want  of  culti-425. 
vation,  &c.  still,  if  the  condition  be  perfornied  before  the  laud  is  petitioned  for,  the 
title  is  saved.   Wilcox  \.  C'allo-way,l  fVash.  Rf p.  50. 

When  a  lease  for  the  tern»  of  seven  years  contained  a  condition  that  the  lessee 
*  should  not  assign  over  or  otherwise  part  with  the  indenture  on  the  preuuses  thei  eby 
leased,  or  any  part  thereof  to  any  person,  &c.  and  of  a  clause  of  re-cUry  and  forfei- 
ture for  a  breach  of  the  condition,  no  forfeiture  is  incurred  by  an  underletting  for  two 
years,  or  a  period  short  of  the  whole  term,  as  the  words  of  the  covfjnant  use  to  be 
construed  to  mean  an  assignment  for  the  whole  term,  Jackson  ex.  d.  Weldon  v. 
Harrison,  17  Johns.  Rep.  66. 

Korean  the  lessor  re-enter  on  the  ground  of  a  forfeitur?,  for  the  non-payment  o{ 
rent,  without  shewing  a  demand  of  the  rent  due  ;  his  claim  being  regirdcO  stricti 
juris,  ibid. 

Before  the  grantee  of  a  rent  charge  can  enter  for  non-payment  of  rent,  he  must 
nake  a  demand  of  the  precise  amount  due,  on  the  day  on  which  it  became  due. 


534  EJECTMENT. 

Part  II.     also  be  proved,  or  reasonable  evidence  given  for  a  jury  to  pre- 
^".nr«'^'^''  su'ne,  that  the  lessor  had  notice  of  the  forfeiture  at  the  time  he 


tnre 


SO  received  the  rent,  otherwise  it  is  no  waver  ;(1)  and  it  is  to 
(l)Ibid.  be  observed,  that  the  receipt  of  rent,  though  a  waver  of  a  for- 
feiture, where  there  is  only  a  proviso  fur  re-entry,  does  not  set 
up  a  lease  which  is  entirely  void,  as  if  in  a  lease /or  years,  it  be 
provided,  that  in  case  of  non-payment  of  rent,  or  the  like,  the 
lease  shall  be  null  and  void,  if  the  lessor  make  a  demand,  &c. 
the  lease  is  absolutely  at  an  end,  and  cannot  be  afterwards  set 

(2)  Co.  Lit.  up  ;(2)  but  in  the  case  of  a  lease  for  life,  the  lessor  could  not 
20d,  a.  determine  the  lease  without  entry,  and,  therefore,  the  forfeiture 

(3)  A'iiie  may  be  waved  by  an  act  which  treats  the  lessee  as  his  tenant, 
Sai'mderf  after  notice  of  the  forfeiture,  notwithstanding  the  deed  declares 
287,  b.  that  the  lease  should  cease  and  be  void. (3) 


SECTION  IV. 

Of  the  evidence  in  ejectment  by  creditors  who  have  a  lien 
on  the  land. 

Sect.  4.         A  Mortgagee  may  maintain  an  ejectment  against  his  mortga- 
creditors.    S^"*'  immediately  after  the  day  of  payment  ',{n)  and  though  the 


an<J  on  the  most   notorious  part  of  the  land  ;  although  the  possession  be  vacMnt,  and 
there  be  notbii  g  to  Histram    M  Cormick  v.  Connell,  6  Serg.  ig  R.  Rep.  151. 

A  Court  of  I'>inily  will  not  assist  I'l  ihi'  ncovery  ot  a  penaliv  or  forfeiture,  or  any 
thing  in  the  nature  of  a  forfeiture.  Livingston  v.  Tompkins,  4  Johns.  Ch.  Rep.  415. 
— Am.  Ed. 

(n)  Ejectment  will  not  lie  against  a  mortgagee  in  favour  of  the  mortgagor  for  the 
possession  of  the  mortgaged  lands,  thnngti  the  money  shoubt  have  been  tendered  ; 
the  remeily  in  such  a  case  being  bv  bill  in  equity.  Hill  v.  Pat/son  et  al.  3  J^Iass. 
Rep.  559.   t'ei-kins  et  al.  v.  Pitts,  11  Do.  J 34. 

Thi-  mortgagor  is  tenant  at  ujll  to  mortgagee.  Beach  v.  Royce,  1  Roofs  Rep. 
24*.   S.P.  Bencher  \.  Cook,  ibid  296. 

A  mortgagor  and  his  alienee,  are  tenants  at  will  at  the  option  of  the  mortgagee. 
Judd  v.  h  oodrvff,  2  Do.  'J98. 

The  I'ual  estate  in  mortgaged  premises  is  vested  in  the  mortgagee,  and  persons 
claiming  under  him  must  recover  in  ejectment.  Jackson  ex  d.  Simmons  et  al.  y. 
Chase,  2  Johns.  Rep.  84    Jackson  ex.  d.  Tathill  v.  Dubois,  4  Do.  216. 

But  the  mortgagor  notwithstanding,  is  still  deemed  seised,  and  is  the  legal  owner 
to  all  persons  except  the  mortgagee anA  his  representatives.  Hitchcock  et  iix.  v.  ffar- 
rington,  f)  Johns.  Rep.  290.   WiUington  v.  Gale,  7  Mass.  Rep.  138. 

So  completely  is  the  mortgagee  regarded  as  the  owner  of  the  freehold,  that  he 


EJECTMENT.  535 

mortgagor  may,  by  Statute  7  Geo.  2,  c.  20,  obtain  relief  by  mo-  Ch.  IX.  s.  4. 
tion,  on  certain  conditions,  yet,  on  a  trial,  the  proof  will  be  very  ^^..^.'^IJorJ!^ 
simple.     If  tlie  mortgagor  be  himself  in  possession,  proof  of  the  ________ 

execution  of  the  deeds  will  be  sutlicient,  for,  as  was  said  before, 
he  cannot  set  up  any  title  inconsistent  with  his  own  deed  ;(1)  (i)  Vide  ante, 
but  if  a  third  person  be  in  possession,  the  lessor  of  the  plaintifF'''^'^' 
should  also  prove,  that  the  mortgagor  was  in  possession  or  re- 
ceipt of  rent  at  the  time  of  the  mortgage  ;  and  if  the  defendant's 
interest  commenced  previous  to  the  mortgage,  that  notice  to 
quit  has   been  given   to   him  ;(2)*  but  if  the  mortgagor,  conti-^?)^'^- 

: . Wright,'  I  T, 

Re[..  279. 
may  m-A\ni  Cm  \.vcs\)'Afii  quare  clausum  f regit  sgainst  the  mortgagee  tor  entering  on 

the  land  and  cutting  trees;  and  if  the  defendant  pleads  liberum  tenementum ,  \.\iq 
moilgHgor  may  reply  that  the  freehold  is  in  himself.  Runyan  v.  JSlersertau,  W 
Johns.  Rep.  534. 

A  mortgage  at  law,  as  well  as  in  equity,  is  a  mere  security  for  the  payment  of  mo- 
ney ;  the  mortgagee  has  only  a  chattel  interest,  and  the  freehold  remains  in  the 
mortgagor.    Coles  v.  Coles,  15  Do.  SVJ. 

But  the  mortgagor's  possession  is  not  adverse  to  the  title  of  the  mortgagee.  Hig- 
gitison  V.  Man,  4  Crunch's  Rep.  415.  S  P.  Bench  v.  Royce,  I  Root's  Rep.  244. 

A  cestui  que  trust  may  maintaiti  an  ejectment  in  his  own  name.  Kennedy  v- 
Fwy,  1  Ball.  Rep.  T2: 

The  assignee  of  the  administrator  of  a  mortgagee  may  maintain  an  ejectment  ia 
his  own  name.   Simpson's  les.  v.  .Emmons  et  al  I  Binn.  Rep.  175. 

It  m:iy  bf  maintained  by  the  heirs  of  a  surviving  trustee,  not  adverse  to  the  interest 
of  cestui  que  trust.  Les.  of  Crunkletoii  et  al.  v.  Evert  et  al.  3  Yeates'  Rep.  570. 

The  interest  of  mortgagee  cannot  be  sold  on  an  execution,  yet  he  may  maintain 
an  ejectment  against  the  tnurtgagor,  and  those  who  claim  under  him.  Jackson  ex.  d. 
Tnihillv.  Dubois,  i  Johns.  Rep.  216.  6'.  P.  JohnsoTis.  Hart,  o  Johns.  Cas.  322. 
Jackson  ex.  d.  JYovton  et  ul.  v.  fVilkird,  iDo.il. 

A  resulting  trust  may  be  sold  under  an  exi-cution  against  the  cestui  que  trust. 
Forte  et  ul.  v.  Colvinet  al.  3  Johns.  Rep.  216. 

But  the  equity  of  redemption  may  bt  levied  upon  and  sold  on  execution.  Pun- 
dersonv.  Broiv7i,  1  Duy^s  Rep.  93.  Waters  \.  Stewart,  1  JV*.  York  Cas.  inEr. 
47.    Willington  v.  Gale,  7  Muss.  Rep.  138.  Porter  v.  Millett,  9  Do.  101. 

In  Pennsylvania,  the  payment  of  a  lien  or  charge  upon  land,  mriy  be  enforced 
by  ejectment.    Galbraith  et  al.  v.  Fenton  et  ux.  3  Serg.  &  R.  Rep.  359. 

Ejectment  will  lie  under  a  mortgage  on  non-payment  of  moufy,  though  the  Act 
of  Assembly  gives  a  different  mode  of  proceeding.  Les.  of  Smith  et  al.  v.  Bu- 
channan,  cited  1  Yeates'  Rep.  13. 

But  it  seems  it  is  not  the  proper  form  of  action  to  recover  a  legacy  charged  on 
land.  Gause  v.  Wiley,  i  Serg.  &  R.  Rep.  509. 

An  equitable  estate  is  not  sufficient  to  support  an  ejectment  in  the  Ci'rcuit  Court 
9X  Pennsylvania.  Carron's  les.  v.Buttdinot,  ..ipril,  1807,  M.  S.  Rep. — Am.  Ed, 

I  •  It  is  said  to  have  been  ruled,  in  White  v.  Haxvkins,  B.  JV.  P.  96,  that  if  a 
mortgagee  give  the  tenant  notice  that  he  wishes  only  to  get  into  the  receipt  of  the 
rents  and  profits,  no  notice  lo'quit  is  necessary,  tijough  the  mortgage  were  subse- 
quent to  the  tenant's  lease  ;  and  in  Dougl.  23,  LoriJ  MANgtiian  is  said  to  have  ap- 
proved of  this  decision.  But  in  Doe  dem  Dacosta  v.  Walton,  8  T.  Rep.  2,  where 
a  creditor  by  elegit  brought  an  ejectment  again.st  a  tenant  under  a  lease  prior  to  the 
udgment,  having  first  given  notice  that  he  did  not  mean  to  disturb  the  tenant's  pos- 


536  EJECTMENT. 

Part  II.  nuing  in  possession,  demise  the  premises  after  the  mortgage, 
^Jreditors''^  without  the  Gonsent  of  the  mortgagee,  no  notice  is  neces- 
___^___  sary.(l)(o) 

(i)Kpech  The  next  case  which  occurs  is  that  of  a  creditor  who  has 

dem.  Warn    gued  out  an  elegit.     He  must  prove  an  examined   copy  of  the 
Dougl.'si.      judgment,  and  of  the  award  and  return  of  the  elegit,  entered  on 
the  roll.     If  such  entry  contain  the  inquisition,  it  is  not  neces- 
sary to  prove  copies  taken  from  the  elegit  and  inquisition  them- 
(2)Ramsbot.  gelves,(2)  though  such  evidence  was  at  one  time  deemed  neces- 

tom  r  Buck-  t/>  i  • 

hurst,  2M.  &sary.(3)     If  by  that  it  appear  that  more  than  a  moiety  is  ex- 
S.  565.  tended,  he  cannot  recover  ;(4)  but  it  is  immaterial  whether  a 

(3)  Gilb.  L.    moiety  of  each  individual  close  or  tenement,  or  a  moiety  of  the 
**   '  whole  in  value  be  extended. (5) 

(4)  Putton         The  conusee  of  a  statute  merchant,  in  case  he  bring  an  eject- 
Saik.  563.  '    ment,  must  prove  a  copy  of  the  Statute,  of  the  capias  si  laicus, 

extent  and  liberate  returned  ;  for  though  by  the  return  of  the 

f5)  Den  dera.  .  ,    .  ,     i    •       ji  ,     ji  .       i 

TaviorT).       extent  an  interest  is  vested  in  the  conusee,  yet  the  actual  pos- 
Lord  Abing.  ggssion  of  that  interest  is  required  by  the  liberate. 

«ion,Uougl.  .  .  *^  ,  _ 

472.  Bui.  N.       The  same  observation  applies  to  these  cases  as  was  betore 
P.  104.  made  on  that  of  a  mortgagee.     If  the  debtor  himself  be  in  pos- 

session, this  formal  evidence  is  sufficient;  but  when  the  posses- 
sion is  in  a  third  person,  the  plaintiff  must  either  shew  that  such 
third  person  claims  under  the  debtor,  and  that  the  defendant's  in- 
cumbrance is  posterior  to  his  own,  or  else  be  prepared  with  evi- 
(6)  Vide  Doe  dence  to  support  the  debtor's  title.(6) 

dem.  Dacosta  '^ '■ 

•'.  Walston. — 

session,  [his  object  bping  only  to  get  into  the  receipt  of  the  rents  and  profits ;  the 
Court  held,  that  the  legal  title  must  prevail,  and  that  the  ejectment  could  not  be 
supported. 

(o)  A  mortgagee,  before  he  can  bring  an  action  of  ejectment  against  the  mortga- 
gor, must  give  six  calendar  months'  notice  to  quit  the  premises.  Jackson  ex.  d, 
Benton  v,  Laughhead,  2  Johns.  Rep.  75.  S.  P.  Jackson  ex.  d.  Carr  v.  Green,  i 
Johns.  Rep.  186. 

But  no  notict  is  necessary  in  nn  ejectment  brought  by  the  mortgagee  against  the 
purchaser  of  the  mortgagor's  interest  or  against  a  third  person  betwe.n  whom  and 
the  mortgagee  there  is  no  privity.  Jackson  ex.  d.  Ferris  v.  Fuller,  ibid.  215.  S.  P. 
Jackson  ex.  d.  Simmons  et  al.  v.  Chase,  2  Johns.  Rep.  84. 

A  disclaimer  by  a  tenant  dispenses  with  a  notice  to  quit.  Jackson  ex.  d.  Locksell 
et  al.  y.  Wheeler,  6  Johns.  Rep.  272. 

A  tenant  at  sufferance  is  not  entitled  to  notice.  Jackson  ex.  d.  Van  Courtlandt 
V.  Park-hurst  et  al.  5  Jehns.  Rep.  128.  Jackson  ex.  d.  Anderson  et  al.  v.  M'Leod, 
12  Do.  182.— AM.  Ed. 


(  5B7  ) 


CHAP.  X. 


OF  EVIDENCE  IN  THE  ACTION  FOR  MESNE  PROFITS. 

In  the  action  for  mesne  profits,  against  the  tenant  in  posses-    Chap.  X. 
sion  after  judgment  in  ejectment,  the  title  of  the  plaintiff,  or  his     '""  ^"° 
lessor,  subsequent  to  the  day  of  the  demise  in  the  declaration,  "~~~~~~" 
cannot  be  disputed  ;  and,  therefore,  whether  the  action  be  brought 
in  the  name  of  the  nominal   plaintiff  in  ejectment,  or  in  that  of 
his  lessor,  this  fact,  and  tliat  of  the   plaintiff's  possession,  are 
sufficiently  established  by  proof  of  examined  copies  of  the  judg- 
ment in  ejectment,  of  the  writ  of  possession,  and 'of  the  Slieriff's 
return  thereon.*(a)     And  if  the  action  be  brought  by  .two,  and 

*  Mr.  J.  BuiLER  (JV.  P.  87,)  says,  that  when  the  judgment  is  against  the  tenant 
in  possession,  and  the  action  of  tre'^pass  is  brought  against  him,  it  seems  soflRcient  ■ 
to  produce  the  judgineirt,  without  proving  ttie  writ  of  jjossession  ex  -cuted  ;  and  JVlr. 
Serj.  RcMJiNGTON  (/>aw  jE/ec?. '•242,)  says  thwi  such  is  ihi-  practice.  Both  :igr(;e 
that  the  practice  is  otherwisf  where  there  has  been  ajudgmtnt  by  defauli  :  but  the 
latter  author  observes,  that  this  piece  of  evidence  does  not  si-em  to  bi'  nee  ssary  in 
either  case,  for  as  the  tenant  is  concltided,  by  the  judgment  in  ejectment,  from  con- 
troverting the  plaintiff's  title,  he  is  consequently  precluded  from  disputing  his  pos- 
session, which  in  this  possessory  action  is\)artof  it.  The  i^rounds  on  which  the 
Court  proceeded  in  Astlin  v.  Parkin,  (2  Burr.  667,)  appear  to  warrant  this  obser- 
vation ;  but  in  the  course  of  the  argument  of  Compere  v.  Hich^,  7  T.  Rep  730,  the 
Court  is  reported  to  have  said,  "  That  confession  of  lease,  entry,  and  oustt-r,  will 
not  enable  the  partv  to  recover  the  mesne  profits.  The  plaintiff  must  have  a  writ 
of  possession,  and  then  the  entry  under  it  wdl  be  referrefd  to  the  time  of  the  title." 

(a)  An  action  for  mesne  profits  is  an  equitable  suit,- and  will  allow  of  every  equi- 
table deicnct .  JMitrray  v.  Gonverrieur  el  aWi  Johns.  Cas.  43S. 

Where  there  is  a  contract  for  the  purchase  of  the  land  urider  which  the  pur- 
chaser enters  into  possession  but  afterwards  does  tiot  comply  with  his  purchase,  the 
vendor  must  resort  to  an  action  of  trespass  and  ejectment  to  recover  thv  mesne 
profits.  Smith  v.  Stervart,  6  Johns  Jiep.  iG. 

In  an  action  of  ejectment,  mesne  profits  may  be  recovered  by  way  of  damages. 
Boyd's  les.  V    Co-!cun,i  null.  Rep   138. 

The  right  10  mesne  prnfiis  is  a  necessarv  consequence  of  a  recovery  in  ejectment. 
Benson  et  al.  v.  Matsdorf,  2  Johns.  Rep   .Tfifl. 

A  recovery  of  nominal  damages  in  ej.  rtmcnt,  is  no  bar  to  an  action  for  the  mesne 
profits    Van-Mf'v.  Ro^^ers,  I  Johns.  Cas  281. 

In  an  action  of  trespass  for  mesne  profits,  an  innocent  possessor  may  set  off  im- 
provements made  on  the  Ian. I    M".rie  v.  Sempfe   .liMi.i.  Rep.  215. 

A  recovery  in  ej(  ctmenf  will  be  conclusive  on  the  ilcfendai't  ».s  to  a  suit  in  an  ac- 
tifn  for  mmie  projiis,  though  the  defendant  should  plead  a  recovery  back  again  by 
3Z 


538  ACTION  FOR  MESNE  PROFllS. 

Part  II.     the  declaration  in  ejectment  contain  two  counts,  one  on  the  de 
Mesne  pi  ofits.  j^jgg  ^£  each,  the  judgment  obtained  on  such  declaration  will 

support  the  ioint  action. (1) 
(nChamiere        C  ,  ,■  .  .i  •  •  i  ^i  ■    •    .•«.  .  i 

V.  Clings,  In   addition   to   this  evidence,  the  plaintin  must  prove  the 

I  M.  &  S,  64.  length  of  time  that  the  defendant  has  been  in  possession  of  the 
land,  the  annual  value,  or  value  of  the  crops  taken  from  it,  and 
the  costs  of  the  ejectment,  in  case  they  have  not  been  already 
recovered.  He  may  also,  when  such  fact  is  specially  alleged 
in  the  declaration,  give  evidence  of  any  injury  done  to  the  pre- 
mises, in  consequence  of  the  misconduct  of  the  defendant  after 
the  expiration  of  the  tenancy. 

If  the  plaintiff  seek  to  recover  profits  accrued  before  the  time 
of  the  demise  laid  in  the  declaration,  he  must,  in  addition  to 
the  former  evidence,  prove  his  title ;  and,  as  the  nominal  plain- 
tiff has  not  any  title,  the  action,  in  such  cases,  must  always  be 
brought  in  the  name  of  his  lessor.(6)     The  defendant  will  be  at 

him,  and  it  appears  thatthe  dtfcndant  had  a  better  title.  Benson  et  al.  v.  JMatsdorf, 
'2,  Johns.  Rep.  369. 

After  a  recovery  in  ejecfmeni  by  defaidt  against  the  casual  ejector,  the  lessor  ot' 
the  plaintiff  may  maintain  trespass  tni'  the  mesne  profits  against  the  tenant,  and  raay 
also  i-e cover  the  costs  of  the  action  ol"  ejectment ;  and  the  defendant  is  not  allowed 
to  offer  any  defence  against  t|ie  demand  of  the  plaintiff  which  would  have  been  a 
bar  in  t'le  original  action.  Bcron  v.  Abeel,  3  Johns.  Rep.  481. 

Tn  an  action  of  trespass  for  mesne  profits,  the  title  cannot  ordinarily  come  in  qaes- 
tion.  Jacksoji  v.  Randcdl,  11  Johns.  Rep.  i05. 

No  ilefence  can  I.e  sei  up  in  an  action  for  the  mesne  profits  of  land  recovered  un- 
der a  regular  judgnit-ni  lij  default  in  ejectment.  Langendyck  etux.  v.  Burhans 
ibid.  461. 

This  action  will  lie  after  a  recovery  in,  ejectment,  even  though  the  plaintiff  have 
since  conveyed  the  land  by  deed  to  the  defendant  with  special  warranty.  Ihiffidd 
V.  Stille,  2  Ball.  Rrp.  156.  S.  C  1  Yeates'  Rep  154. 

But  after  a  recovery  in  ejectment,  trespass  will  not  lie  against  one  who  was  no 
parly  to  the  suit,  without  proof  of  an  actual  trespass  by  the  defendant.  Jilexander  v. 
Herbert,  2  CalVs  Rep.  508.— A?i.  Ed. 

(6)  It  has  been  ruled  in  Pennsylvania,  that  in  trespass  for  mesne  profits,  after  a  re- 
covery in  ejectment,  that  the  plaintiff  shall  nbt  give  evidence  of  the  annual  value  of 
the  premises  beyond  the  time  of  the  lease  mentioned  in  the  declaration  in  eject- 
ment.   Shotwell  V.  Boehm,  1  Dall.  Rep.  172. 

In  an  action  for  mesne  profits,  it  is  sufficient  for  the,  plaintiff  to  produce  the  ver- 
dict and  judgment  where  there  has  been  a  , confession  of  entry,  without  proving  a 
title  to  the  land  or  an  entry  under  the  judgment.  But  where  the  judgment  was  by 
default,  an  entry  must  be  proved.  Les.  of  Brown  v.  Gallo-way,  1  Peters^  Rep.  299. 

In  trespass  for  mesne  profits,  an  innocent  possessor  may  set  off  improvements. 
.Marie  y.  Semple,  Jlddis.  Rep  215. 

The  general  rule  in  trespass  for  mesne  profits  is,  that  the  plaintiff  shall  reco- 
ver for  such  time  as  he  can  prove  the  defendant  to  have  been  in  possession,  provided 
he  does  not  go  back  beyond  six  years,  in  which  case  the  Statute  of  Limitations  may 
be  pleatled.  Hare  v.  Furey.  3  Yeatcs''  Hep.  13. — Am.  Ed. 


ACTION  FOR  MESNE  PROFITS. 


539 


liberty  to  controvert  this  title. (1)     In  like  manner,  when  the  ac-    chap.  X. 
tion  for  mesne  profits  is  brought  against  a  person  who  had  parted '^^'^^"^  P'o'^'S' 

^vith  the  possession  previous  to  the  action   of  ejectment,  the  ~~~ 

plaintiff"  must  prove  his  title  ;(2)  for  the  recovery  in  ejectment  [,'^^'^^^°g'* 
is  no  evidence  against  a  person  wlio  was  not  in  possession,  and.'Ji^i  N.p.87. 
therefore,  could   not  be  served  with  it;  and  even  if  recovered /o)  ibid, 
against  the  wife,  and  an  action  for  the  mesne  profits  be  after- 
wards brought  against  the  husband  and  wife,  such  judgment  is 
not  admissible  as  evidence.(3)     So  where  the  action  is  brought  (3)  Dunnv. 
against  the  landlord   to  the   person  who  was  served  with   the  Hep.  112. 
ejectment,  as  tenant  in  possession,  who  suffers  judgment  by  de- 
fault,(4)  such  judgment  is  not  sufficient  without  shewing  that  t*)  Hunter 
the  landlord  had  notice  of  the  ejectment.  Icampb.iss. 

Where  an  entry  was  necessary  to  avoid  a  fine,  the  defendant  Compere  r. 
may,  by  proof  of  the  fine,  prevent  the  plaintiff*  from  recovering '^''^'**'^'^- 
any  profits  which  accrued  before  the  time  of  the  entry,  which 
in  such  case  the  plaintiff"  should  be  prepared  to  prove. 

In  cases  where  the  plaintiff"  does  not  enter  into  evidence  of 
title,  the  defendant's  evidence  wiJl  of  course  be  confined  to  the 
value  of  the  profits,  and  the  time  of  his  possession ;  and  if  the 
plaintiff"  claim  profits  for  more  than  six  years,  the  defendant 
must  plead  the  Statute  of  Limitations,  to  pi'event  his  recovering 
any  damages  for  the  profits  taken  previous  to  that  time.  This 
action  is  now  rendered  in  a  great  measure  unnecessary  in  the 
case  of  landlord  and  tenant,  by  the  Statute  1  Geo,  4,  c,  87,  re- 
ferred to,  ante,  c.  9,  s.  3 


(  540  ) 


CHAP    XI. 

6T  THE  >VIDENCE  IN    ACTIONS  BY  AND    AGAINST  HUSBAND  ANP 
WIFE,   OR  BY  A   HUSBAND,  PARENT,  OR  MASTER. 


SECTION  I. 

^fictions  by  and  against  husband  and  wife. 

Part.  ir. 

h^  b'nd^'nd      ^^  cases  where  the  husband  and  wife  are  joint  plainiijff^^s,  the 

wite.        marriage,  if  put  in  issue,  should  be  proved  bj  an  examined  copy 

■  of  the  register,  or  bj  some  person  present  at  the  time  ;  but  when 

they  are  defendants^  proof  that  they  cohabited  together  as  hus- 

Norwood  7^.    band  and  wife  is  conclusive  upon  them  j  for  a  man  who  permits 

Aik'i  'isr.     a  woman  to  pass  in  the  world  as  his  wife,  will  not  afterwards  be 

Vide  ante,  44.  pg,,„^ij.te(l  to  say  that  she  is  not  so.(a) 

(a)  liusbaDcl  and  wife  may  join  in  an  action  of  account  fin'  rents  and  profiis  of  the 
■wife's  lands  ar.crning  during  {he  marriage.  Lewis  v.  Martin,  1  Day's  Rep.  263. 
S'  d  vide  Chancey  v.  Strong.  2  Root's  Rep.  369. 

Thev  mus(  join  in  an  wction  of  tn-spass  :igairist  ont;  who  has  entered  on  the  wife's 
lands    Byrne  etux.  v.  fcm  Hoesen,  5  Johns.  Rep.  06. 

Thty  must  join  in  an  actron  of  di-tirtue  for  the  slave  of  the  wife  detained  before 
and  at  the  time  of  marriage.  Johnston  v.  Pastttir^  Rep.  in  Co  of  Conf.  464. 
QHayw.  Rep.  187.  ibid.  231.  ibid  306.  S  P.  ^orfdtr.  Banis,  ibid.  51". 

Trespass  will  lie  ai^ainst  husband  and  wife  for  a  joint  trespass.  IVright  v.  Kerr 
et  iix.  ^ddii.  Rfp.  J  3. 

Where  the  husband  is  sued  as  administrator  in  right  of  his  wife,  she  ought  to  be 
joined,  because  it  husband  should  die,  the  action  would  survive  against  the  wife. 
JMoore  V.  SuttriPs  adins.  1  Ilnyw   Rep.  16. 

If  husband  ami  wife  join  in  an  aeiion,the  reason  whvthey  arejoined  must  appear 
on  recoi-d,  or  the  judgment  will  be  reversed  on  a  "  lit  of  error.  Staley  v,  Barhite, 
2  Caines'  Rep.  221. 

A  declaration,  chargine: husband  and  wife  witha  joint  assumption,  in  consideration 
of  money  had  and  received  l)\  them  to  the  plaintifPs  use,  is  bad.  Grosser  et  ux.  v. 
Eckartet  vx   1  Binn.  Rrp.  5  "5. 

Husband  and  wife  cannot  join  in  suing  a  popular  action,  ffill  et  ux.  v.  Davis  et 
ai:  4  Mass.  Rep.  IA7.  -.  ■  ^ 

Nov  in  an  nction  for  an  injury  done  to  the  husband.  Munroe  v.  Maples,  iRooVs 
Rep.  422.  Vide  Cheesebnrougli  v.  Baldwin,!  Root's  Rep.  229. 

An  action  brought  by  the  husband  and  wife,  in  right  of  the  wife,  will  abate  by  the 
death  of  the  iliife.  Jircher  \ .  Colly  etitx  4  Hen.  &  Munf.  Rep.  4l0.  S.  P. 
Moore  i:.  SutlriVs  adms.  1  Bayiv.  Rep.  16. 

But  in  such  a  suit,  if  the  husband  die,  the  right  survives  to  the  wife,  and  on  her 


ACTION  BY  HUSBAND.  5^£ 

But  wlien  only  the  general  issue  is  pleaded,  whether  in  as-  cii.  xr.  s.  i. 
sumpsit,  case,  or  trespass,  there  is  no  necessity  to  prove  the  dus',]!^','"! ^^,^j 
marriage.     If,  therefore,  husband  and  wife  sue  for  a  debt  due  to        wiii-. 

the  wife  before  the  marriage,  or  for  an  assault  committed  upon  • 

her,  and  the  defendant  plead   the  gewral  issue,  the   plaintiffs 

will  not  be  obliged  to  give  further  evidence  of  their  relationship 

to  each  other  than  is  sufficient  to  shew  that  the  woman  who  sues 

as  the  wife  of  ^.  is   the  person  with  whom   the  contract  was  Dickenson  k 

made,  or  on  whom  the  assault  was  committed  ;  an<l  the  defend-  ^^''l';^'-  ^'*" 

'  .  VIS,  1  Sira. 

ant  will  not,  on  this  issue,  be  at  liberty  to  dispute  the  marriage.  480. 


SECTION  II. 

.Actions  by  husband  alone. 

When  the  husband  sues  alone  to  recover  damages,  in  conse-      Sect.  % 
quenceof  the  defendant's  misconduct  towards  his  wife,  he  must        "'    °"" 
strictly  prove  the  marriage,  although  only  the  general  issue  be  ~     , 
pleaded  ;  for  the  plea  of  not  guilty,  in  this  case,  puts  the  facts  viiiier,  4* 
of  the  marriage  in  issue  ;  as,  without  thai  fact,   the  defendant  ^^^^-  2057. 
has  committed  no  injury  to  the  plaintiff  individually. 

Inactions  for  criminal  conversation,  therefore,  the  plaintiff 
must  prove  the  actual  marriage  and  identify  of  himself  and  his 
wife.(6)     No  reputation,  nor  even  an  admission  by  the  defendant 


<ieath  the  suit  should  not  he  revived  in  the  name  of  his  administrator.    YaufJ'haii  ei 
ux.  V.  Wilson,  4  Hen.  (J  Mwif.  Rep.  452. 

The  liusl)and  canr.ot  be  surd  alone,  for  the  debt  of  his  wife,  contracted  before 
their  marriage.  Angela.  Felton,^  Johis.  Rep.  115.  Et  vide  Guge  v.  Reed,  l.'i 
Do.  403. 

The  husband  must  be  joined  in  suit«  brought  for  an  injury  done  to  tiie  wife.    I)r 
naldson  v.  Maginnes,  4  ideates'  Rep.  137. — ^Am.  En. 

(6)  Th<^  husband  cannot  support  an  action  for  crim.  con.  after  a  separation  with  his 
wife,  provid"d  such  agri'tmc-nt  was  voluntary  on  the  part  of  the  husband.  Frei/  v 
JDerstler,  ^  Veates''  Rep.  i/S. 

So,  ■when'  the  injury  is  stated  to  have  been  committed  within  certain  da)  s,  propi 
of  imiMoper  freedom  must  b<;  first  proved  within  th.-  limited  tiini;,  before  evidence 
of  the  tr(  spass  at  a  different  time  can  be  received.  Gardner  v.  JMadeira,  '2  Yeates' 
Rep.^m. 

Ill  this  action  the  declaration  of  tlie  defendant  that  he  knew  .4.  was  married  in 
the  plaintiff",  and  with  thai  knowledge  bad  seduced  her,  may  be  given  in  evidence  in 
proof  of  llie  marriage.  Forney  y.  Hallacher,  8  Serg.  &  R.  Rep.  159.— Am.  Ed. 


54*3  ACTION  BY  HUSBAND. 

Part.  II.  that  he  had  committed  adultery  with  the  plaintiff's  tuife,  will  be 
cr\n'°.'coif.  sufficient  in  this  case.  But  when  the  marriage  is  proved  by  the 
register,  the  parties  may  be  identified   by  any  other  evidence 


Burt  V.  Bar-  which  satisfies  the  jury  ;  as  the  proof  of  their  hands  writing 
l°*>  ^°"S'-    subscribed  to  the  register,  or  the  circumstance  of  their  after- 
wards giving  a  wedding-dinner,  and  presiding  at  it  as  the  per- 
sons married  ;  and  this,  although  the  subscribing  witnesses  pre- 
(1   Woolston  ^     ^  ,.  .  r    •  T      ^u  r         x     •  u 

W.Scott,  Bui.  sent  at  the  marriage  are  living.     In  the  case  oi  sectaries,  who 

^r'T'^^'       marry  contrary  to  the  usual  ceremonies  of  the  church,  a  marriage 

Vide&aner  •'  •'..  .  ^ 

r.  Lady  according  to  their  rites  will  be  sumcient.(l) 

Peake^s*Cas       ^^^  ground  of  the  action  being  the  loss  of  the  wife's  affection 

17.  and  society,  all  evidence  which  tends  to  shew  that   they  lived 

affectionately  together,  is  proper  to  be  adduced  on  the  part  of 

the  plaintiff.     Even  letters  from  the  wife  to  her   husband  may 

L  Cooke^l^   be  admissible  under  some   circumstances,  as  where,  during  his 

Esp.  Cas.  39.  absence,  she  writes  letters  of  affection  to  him,  and  it  is  clearly 

(3)Treiawney  shewn  that  such  letters  were  written  before  the  defendant  be - 

w.  Coieraan,   came    acquainted   with   her;(2)  but  unless   the  latter  fact  be 

'  clearly  made  out,  the  letters  will  not  be  admitted. (3)     If  the 

(4)  Vide        plaintiff  has  lost  any  expectations  of  fortune  in   consequence  of 

^.  Green-       the  scduction  of  his  wife,  it  will  also  be  proper  evidence  on  his 

n"p'  -s"''      P''^''t.(4)  as  will,  in  many  cases,  the  rank  and  circumstances  of 

the  defendant. 

The  defendant  will%e  permitted  to  shew  in  mitigation  of  da- 

Vide  ante,  13.  „(^ages,  that  the  wife  was  a  woman  of  loose  conduct,  and  one 

whose  society  was  of  but  little  value.(c)     So  if  the  husband  has 

ill-treated  his  wife,  or  connected  himself  after  his  marriage  with 

other  women,  this  also  is  proper  matter  to  be  given  in  evidence 

rs)  Wynd-     5y  ^j^g  defendant,  and  generally  has   considerable  effect   in  re- 

Wycomb,       ducing  the  damages.     Indeed,  the  circumstance  of  the  plaintiff's 

iEsp.  Ca8i6,(>Qjjj^g(,^iQjj  after  marriage  with  other  women,  was  holden  by 

and  Street  t).  ,        ,   ,,  .  ,  ^^   .      c        •    \  i    r  .       .1 

Marquis  of     Lord  Kenyon  in  two  cases,(5)  to  lurnish  a  defence  to  the  ac- 
Blandford       ^-^jj     j^^^  Lord  Alvanley,  in  a  subsequent  case,(6)  held,  that  it 

Cncrc  cited* 

only  vyent  in  mitigation   of  damages.     So  the  defendant  may 

'^^wluace^  prove   that  the  plaintiff  consented  to  his  wife's  adultery  with 

ibid,  237.  '  the  defendant  or  with  other  men  ;(7)  and  if  this  be  satisfactorily 

'7^ Smith TJ  proved,  the  action  will  fail  altogether,  for  a  husband  who  has  so 

Xiiison,  Bui.  prostituted  his  wife,  will  not  be  perlnitted  to  sue  as  a  plaintiff  in 

Holies  V  a  Court  of  justice.     It  should  here  be  observed,  that  great  cau- 

Wyndham,  ^ion  ig  necessary  in  the  introduction  of  evidence  of  this  descrip- 

^ea  ea    as.  ^.^^^  ^^^  unless  most  clearly  and  satisfactorily  made  out,  it  will 

(c)  Torre  v.  Sommers,  2  Xott  &  M'  Cord's  Rep.  267.— Am.  Ed. 


ACTION  BY  HUSBAND.  g.j,3 

always  much  aggravate  instead  of  diminishing  the  damages.     In  Ch.  XI.  s.  2. 
one  case,  where  the  husband   and  wife  were   parted  by  articles    A?tionfor 

'  .  crim.  con. 

of  separation,  it  was  determined,  by  the  Court  of  King's  Bench, 
that  this  circumstance  alone  was  a  bar  to  any  action  for  adul-^i^  ^Yge^jg^ 
tery,  subsequently  committed  ;(1)  but,  in  a  very  late  case,  the t^' Tnnbrei, 
propriety  of  this  decision  was  much  doubted. (2) 

The  action  for  harbouring  a  wife,  who  has  eloped  from  her  (2)  P'^mb^rs 
husband,  is  frequently  brought  against  some  relative  of  the  wife,  g  East,  244. 
to  whom  is  not  imputed  any  criminal  feeling  towards  her.(d)     In  Action  for 
this  case  the  conduct  of  the  husband  and  wife   towards  each  ^""/fj  ""  ^ 
other  will  form  the   principal,  but  not  the  only  subject  of  in- 
quiry ;  for  to  maintain  the  action,  it  must  be  shewn  that  the  de- 
fendant obstinately  iiarbours  her  when  he  knows  that  she  ought 
to  be   under  the  coercion  of  her  husband.     It  is  therefore  per 
mitted  to  him,  for  the  purpose  of  disproving  this  fact,  to  shew 
not  only  actual  ill-treatment  by  the  husband,  but  any  represen-p^i, 
tation  of  the  wife  at  the  time  she  came  to  his  house  and  sought  Squire,  and 
his  protection.     A  representation  made  by  her  at  a  subsequent  Greenbank, 
t'ime  is  not  admissible.  ante,  38, 


SECTION  III. 

Actions  by  a  parent  or  master. 

A  PARENT  may  maintain  an  action  for  any  assault  upon,  or  in- 
■ury  done  to  his  child,  whilst  such  child  remains  part  of  his  fa- 
nily.  The  strict  ground  of  the  action  is  the  loss  of  the  service 
vhich  the  child  might  have  performed  for  the  parent ;  and  though 
it  has  been.holden,  that  it  is  not  necessary  to  shew  that  in  fact 


[d)  In  Massuchiisetts,  it  has  been  ruled,  tliat  an  action  will  not  lie  by  the  hus- 
band HEjHinst  the  delenilant  for  permitting  his  wife's  mothei-  to  reside  in  his  house, 
m(\  affording  her  the  rights  of  hospitality,  even  though  the  husband  should  forbid 
t.  Turner  \  Bates,  5  Mass.  Rep.  317. 

In  J^e-ui  York,  it  lies  by  a  husband  against  the  father  of  his  wife  for  enticing  her 
away  ;  but  that  the  jury  should  have  much   stronger  evidence  of  malicious  and  iiti' 
•oper  motives  in  the  defendant  than  in  other  case's.    Hutchcson  v.  Peck,  5  Johns. 
Ve/f.  106. 
Am)  the  jMo  anitno  is  the  material  point  of  infjuiiy.  ibid. 

An  action  tVir  damages  lies  in  favour  of  the  husband  against  a  surgeon  for  unskil- 
fully operating  upon  his  wife,  though  she  should  die  of  the  operation.     Cross  v. 
'^Cuthery,  2  Root's  Rfp.  90.--AM.  Eu. 


54,4*  ACTION  BY  PARENT,  &c. 

Part  II.     the  child  was  accustomed  to  perform  any  menial  office,  or  othei 
Actions     service  in  the  family,  but  that  it  is  sirfficient  if  he  or  she  were 

by  parent  or     .    .  •' 

mastir.      living  in  the  parent's  house,  and  under  his  protection, (1)  yet  it 

— * must  be  proved  that  the  child  did  so  reside.     Therefore  a  pa- 

Sednction.      rent,  whose  daughter  has  a  permanent  and   fixed  residence  in 

Bi-nwn*^**     another  family,  cannot  maintain  any  action  against  the  person 

Pake's  Cas.   who  seduces"  her,  though  she  be  under  ageJ2)     In   this   case, 

however,  the  person  with  whom  she  resides  may  maintain   the 

(2)  Dunn  T'.    action.fS)     When  the  daughter  resides  with  her  parent,  thoug;h 

Peel   5  East  . 

45    '  '  she  be  above  twenty-one  years  of  age,  he  may  maintain  the  ac- 

tion :(4)  and  so  he  may  also  if  her  general  residence  be  at  his 

(3)  Fores  v.  .  * 

Wilson,?,  ak. house,  and  she  is  seduced  while  on  a  visit  at  the  house  of  ano- 
Cas.  55.  Ed-  |[,gj.  person  with  his  consent. f5)(e) 

rnonson  v.  '  .  . 

Macht-1, 2T.      To  support  the  action,  the  girl  herself  may  be  a  witness,  and 
livm-D  Dear-P^*^^®  any  facts   or  circumstances  attending  the  seduction,  ex- 
man,  ii  East.cept  such  as  would  support  another  action  at  her  own  suit  for 
a  breach  of  promise  of  marriage.(6)(y)    The  defendant  on  his 

(4y  Booth  V. __^ 

Charlton,  cor.  ~7TTI       ~      ~     .  T""^  ~        ~     '.       .  .        ~. 

Wilson  .1.  (0  ^^  action  lies  by  a  woman  against  a  rnan  for  seducing  her,  under  a  false  pre- 

citeil  5  East,    tence  of  courtship  and  intention  of  marriage,  and  getting  her  with  child.    Pauly. 

47.  Friizier ,  5  Mass  Rep.  71.  ■ 

Henneit^ij.  Case  lies  for  debauching  a  man's  daughter  and  glutting  her"with  child,  ^er  ^-wofi 

R<D   I'sfi     '     serviiiuin  amisit.  Ream  v.  Ravk,  3  Serg.  (J  R.  Rep.  315. 

A  father  may  maintain  an  action  on  the  case  for  the  seduction  of  his  daughter /)<?r 

(5)  Johnson      quod,  &c.   though  at  the  time  she  did  not  reside  with  him;  providcl  she  was  sub- 

iJ.  M-AnaiTi,   j,,,^  ,q  ^■^^  control,  and  he  was  entitled  to  command  her  services.  Hornketh  v.  Ran  . 

5  East,  47.        g  jj^  gg    ^  p  Johnslo7i  v.  Caultins,  I  Johns.  Cas.  116. 

(fi)  Vide  ante       ^"'  '"  ^"  action  for  a  breach  of  a  jiromise  of  niarriage  and  for  seduction,  the  de- 

241,  pi.  11.  fendant  was  not  allowed  to  give  in  evidence  the  genernl  bad  character  of  the  plain- 
tiffbetween  the  promise  and  lhebreach,in  mitigation  of  damages.  Boynton  ■v.  Kel- 
logg, 3  Mass.  Rep.  189. 

^ctioTj  by  parent. 

An  action  will  lie  by  the  father  for  enticing  away  a  minor  child,  and  procaring 
her  to  be  fraudulently  married,  whereby  he  sustained  damage.  HilU\.  Robert, 
-2  Root's  Rep.  48.  . 

In  South  Carolina,  under  the  Statute  of  5  PliUip  and  Mary,  c.  8,  extended  to 
that  State,  where  the  defendant  seduced  away  from  he.r  father's  house  a  maid  wider 
cixteen  years  of  age,  without  the  consent  of  parents  or  guardian,  he  is  liable  to  be 
punished,  whether  he  marry  her  or  not.  T/te  State  v.  Findlay,  2  Ray's  Rep.  418. 
.  But  an  action  will  not  lie  in  favour  of  a  mother,  as  a  mother,  for  the  service  of  a 
minor  son,  where  it  does  not  appear  the  father  is  dead.  Burk  v.  Ptdps,  1  Root's 
Rep  487. 

A  mother  as  such  has  no  legal  authoritv  over  a  son,  and  is  not  entitled  to  his  ser- 
vices, while  he  lives  with  her.     Com-nonivealth  v.  .Murray,  4  Bttin.  Rep.  412. 

No  action  will  lie  in  favour  of  a  woman  againsta  man  for  seducing  and  gettmg  her 
with  child,  under  pretence  of  a  design  to  marry  her,~  no  promise  of  marriage  being 
proved.  Paul  v.  Fruzier,  3  Mass.  Rep.  71. — Am.  Ed. 

(y)  In  an  action  for  breaking  and  entering  the  house  of  the  plaintiff,  and  getting 
his  daughter  with  child,  the  daughter  is  a  competent  witness.  Mott  v.  Goddard, 
1  Roofs  Rep.  472.  S.  P.  Seager  v.  SUgevhaid,'!  Caine's  Rep.  219. 


ACTIOiV  BY  PARENT,  &c.  q^q 

part  may,  as  in  the  case  of  adultery,  prove  the  loose  character  Ch.  XI.  s.  3. 
of  the  girl,  or  the  misconduct  of  the  parent  himself  in  volunta-  ,    ^'^"""^ 

»       '  •  .  T)y  parent  or 

rily  permitting  an  illicit  connection  to  be  tormed  between  the      master, 
defendant  and  his  daughter,  which  latter  fact  will  destroy  the  '-'- 

right  of  action  altogether,Cl)Ci>)  L^)  ^^'^^'l''^  ^- 

^~  Scoolt    Peak 

The  action  for  seducing  or  harbouring  ant  apprentice  or  hired  cas.  240. 
servant,  materially  differs  from  those  for  adultery,  or  debauch-  ^^._ 
ing  a  daughter.(2j(ft)     The  act  of  the  defendant,  in  these  latter  Wilson,  ubi* 
cases,  being  itself  illegal,  no  proof  is  required  of  his  knowledge '*"P' 
of  the  relationship  which  subsisted  between  the  plaintiff  and  the 
person  seduced;  but  to   support  an  action  for  enticing  or  har- 
bouring an  apprentice  or  hired  servant,  it  must  be  proved  that 
the  defendant  knew  at  the  time  he  committed  the  injury  which 
is  complained  of,  that  the  person  in  respect  of  whom  the  action 
is  brought,  was  the  apprentice  or  servant  of  the  plaintiff.     ToFawcettw. 
sustain  this  action  therefore,  the  plaintiff  must,  in  the  first  place.  Lew  63. 
prove  the  contract  between   himself  and  the  person  seduced, 
and  then  either  that  the  defendant,  knowing  of  such  contract, 
enticed  him  from  the  plaintiff's  service,  or  else  that  the  defend- 
ant harboured  the  servant  after  regular  notice  of  his  contract 
with  the  plaintiff,  and  a  requisition  to  the  defendant  to  deliver 
him  up,  or  not  to  harbour  him  any  longer. 


But  the  daughter  cannot  be  a  witness  to  [)rove  a  promise  of  marriage  in  aggrava- 
tion of  damages,  for  she  has  herself  a  riglit  of  action  therefor.  Foster  v.  Schoffield, 
1  Johns.  Rep.  297,— Am.  Eij. 

(^)  A  father  cannot  maintain  an  action  for  debauching  his  daughter/iPf  quodser' 
viiium  amisit,  if  it  ap[)ear  in  evidence,  that  he  consented  to.  or  connived  at,  the  inter' 
course  with  the  defendant.  Seager  v.  Sligerland,  2  Cables'  Rep.  219. 

But  the  grounds  of  the  suit  are  the  loss  of  service  and  expenses  of  lying-in,  it  is 
therefore  no  defence  to  shew  the  daughter  to  be  unchaste, unless  the  father  connived 
at  her  criminal  intercourse  ;  the  want  of  chastity  may  be  given  in  evidence  in  miti« 
gation  of  damages,  .Mkerley  v.  Haines,  ibid.  292. — Am.  Ed. 

(Ji)  A  master  may  maintain  an  action  for  the  batteiy  of  his  slave.  Jfhite  v.  Chani' 
bers,  2  Bay's  Rep.  70. 

In  an  action  on  Ihe  case  for  enticing  away  the  defendant's  secrant,  i\\t  general 
rule  of  damages,  is  the  value  of  the  service  during  the  period  tlie  servant  was  in  the 
defendant's  employ  ;  but  the  jury  may,  in  certain  aggravated  C9i%(is,  give  the  whole 
value  of  the  servant  by  way  of  damages.    Dubois  v.  Jllien,  1  Antli.  JV*.  P.  Cas.  63. 

Under  a  count  for  harbouring  ov  entertaining  a  servant,  evidence  ol  enticement  is 
not  necessary,  tfijt/. — Am.  Ed. 


4  A 


(  516 


CHAP.  XII. 


OF  THE   EVIDENCE  IN   CASES  OF  BANKRUPTCT. 


SECTION  I. 

In  actions  by  and  against  the  assignees. 

Part  II.  If  assignees  of  a  bankrupt  bring  an  action  of  trover  for  the 
a4ius'i  the'^'^  goods  of  the  bankrupt,  or  assumpsit. on  a  promise  made  to  him 
assignees.       before  his  bankruptcy,  or  on  an  implied  promise  to  themselves 

• as  assignees  afterwards,(a)  and  the  defendant  pleads  the  general 

Bui.  N.p.sr. 

(a)  Assignees  of  a  bankrupt  may  rnaintatii  an  action  against  a  Sheriff  for  Don-col- 
leciion  of  an  execution  placed  in  his  hands,  Sullivan  v.  Sndge,  1  J\tass.  Rep  512. 

Where  the  bankrupt  and  his  creditor  contemplated  a  transfer  of  the  debt,  to  pay 
one  of  the  bankrupt's  creditor,  but  which  was  not  completed,  it  w:is  held  that  his 
assignees  could  recover  the  amount  from  the  creditor.  Foster  et  al.  v.  Loiuell,  4 
Mass.  Rep.  308. 

The  assignee  of  a  bankrupt  may  bring  an  action  in  his  own  name,  for  the  reco- 
very of  real  estate  assigned  to  him.   fVickham  v.  TFatenmin,  Kirb.  Rep.  273. 

The  assignees  of  a  bankrupt  may  bring  an  action  of  ejectment.  Barstotv  \.  Adams, 
2  Day's  Rep.  70. 

The  assignees  of  a  bankrupt,  can  bring  an  action  for  the  rents  and  profits  of  land 
held  under  a  fraudulent  deed,  due  since  the  act  of  bankruptcy,  or  the  time  the  right 
of  the  creditors  to  call  him  to  account  accrued.  Sands  et  al.  v.  Codioise  et  al.  4 
Johns.  Rep.  536. 

An  action  cannot  he  brought  in  the  bankrupt's  name  for  a  debt  contracied  bf-fore 
the  bankruptcy,  after  he  has  made  an  assignment.  Elderkin  v.  EUIerkin,  1  Root's 
Rep.  139. 

So  in  the  case  of  one  discharged  under  an  insolvent  law.  Yowig  v.  IViUing 
et  al.  2  Dall.  Rep.  276. 

A  dischargf  under  the  insolvent  \s.v;  oi  Pennsylvania,  26th  JMarch,  1814,  re- 
leases the  di  f'endMnt's  person  from  liabilitv  for  a  note  drawn  by  him  before  his  dis- 
charge, but  payable  afterwards.   George  v.  Hoover,  3  Serg.  &  R.  Rep.  559. 

But  one  wlio  has  made  an  assignment  under  the  insolvent  law,  may  maintain  an 
action  in  his  own  name  for  a  malicious  abuse  of  legal  process  in  seizing  goods  prior 
to  the  assignment.   Sommer  v.  Wilt,  4  Serg.  SJ  R.  Rep.  I'J. 

The  assignees  of  a  bankrupt  are  not  entitled  to  come  in  and  prosecute  a  real zc- 
tion  commenced  by  the  bankrupt.  Fales  v.  Tliompbon,  1  Mass.  Rep.  134. 

Torts  are  not  transferred  by  the  bankrupt  under  th-  assignment.  Stanly  v.  Du- 
hurst,  <2,  Roofs  Rep.  52.  S.  P.  Shoemaker  v  Keely,  2  Dall.  Rep.  213.  S.  C.l 
Yeates'  Rep.  245. 

Quere,  Whether  the  bankruptcy  of  the  plaintiffs  can  be  given  in  evidence  in  aa  ac, 
tion  ol  assumpsit,  under  tht  general  i.ssue.  Bi^det  al.  v.  Pierpoint,  1  Johns.  Rep.  117. 

A  eonimission  of  bankruptcy  in  England,  does  not  secure  the  debtor's  effects  in 


CASES  OF  BANKRUPTCY. 


547 

issue  ;  the  plaintiffs  must  prove  not  only  property  in  the  goods  ch.  Xil.  s.  i. 
to  suDDort  iheir  action  of  trover,  or  the  consideration  to  support  A'^*'""  ^7°^' 
the  promise,  but  also  the  trading  of  the  bankrupt,  the  act  of    ^^signees. 
bankruptcy,*  the  petitioning  creditor's  debt,  the  commission  and 


Abliot  V. 
Pltimbe, 


this  country  ;  but  they  remain  liable  to  the  attachment  of  their  creditors,  as  well  Dougl.  205. 
British  as  American.   Taylor  et  al.  v.  Geary  et  at.  Kirb.  Rep.  313. 

In  one  casf!  in  J\''exv  York,  it  was  doubted  whether  the  assigriees  of  one  made  a 
bankrupi  in  England  could  sue  in  the  United  States  as  such  ?  £ird  et  al.  v.  Pier- 
point,  I  Johni.  Jiep.  117. 

In  a  subsequent  case  it  was  ruled,  that  a  suit  may  be  instituted  in  the  name  of  a 
foreign  bankrupt,  and  he^raay  be  joined  with  the  assignees  of  a  co-partner  who  is 
a  bankrupt  in  this  country  ;  it  is  a  principle  among  nations  to  admit  and  give  effect 
to  the  title  of  foreign  assignees,  in  cases  of  bankruptcy  ;  but  the  mode  of  proceeding 
to  recover  the  debts  of  the  bankrupt,  whether  in  his  own  name  or  the  name  of  the 
assignees,  depends  on  tht-  forms  of  proceeding  in  the  Court  where  such  action  is 
brought.  Bird  et  al.  v.  Caritat,2  Johns.  Rep  342. 

An  assignment  by  commissioners  of  bankrupts  in  England,  does  not  operate  a 
legal  or  equitable  transfer  of  the  property  of  a  bankrupt  in  Pennsylvania,  so  as  to 
prevent  a  foreign  attachment  by  an  ./J/)ienca?t creditor.  Milne  v.  JVlorelon,  6  Bum. 
Rep.  353. 

The  bankrupt  law  of  a  foreign  country  is  incapable  of  operating  a  legal  transfer 
of  property  in  the  U.  States.  Harrison  v.  Sterry  et  al.  5  Cranch's  Rep.  289. 

Ill  Maryland,  an  attachment  issued  by  the  plaintiff's  residing  in  Great  Bntain, 
was  quashed  on  the  ground  that  such  creditors  were  bound  by  a  Statute  of  bank- 
ruptcy, and  could  not  attach  the  bankrupt's  estate.  Burk  et  al.  v.  M^  Clain,  1  liar. 
&  MHen.  Rep.  236.— Am.  Ed. 

*  To  shew  quo  animo  the  bankrupt  left  his  house,  his  declaration  at  the  time  as 
to  his  fear  of-.m  arrest  may  be  proved;  but  any  declaration  at  another  tim",  wiien  do 
act  is  done  by  him,  is  not  evidence.  Ambrose  \.  Clendon,  Cus.  Temp.  Hardvj.  207. 
Bateman  v.  Bailey,  5  T.  Rep.  512. 

Where  a  trader  having  drawn  a  bill  of  exchange,  afterwards  and  before  it  became 
<iue  said  it  would  not  be  paid,  such  declaration  was  received  to  dispense  with  the 
want  of  notice  of  the  subsequent  dishonour,  though  previous  to  making  it  the  trader 
had  committed  an  act  of  bankruptcy,  which  was  afterwards  made  the  ground  of  a 
commission.     Brett,  Ass.  &c.  v.  Levett,  13  East,  218. 

In  the  above  case  it  appears  that  the  Couit  ot  King's  Bench  held  the  bankrupt's 
declaration,  after  the  act  of  bankruptcy,  to  be  evident  against  a  third  person  who 
disputed  the  commission  ;  atid  in  a  subsequent  case,  where  the  bankrupt  brought 
an  action  against  his  assignees,  the  same  Court  held  that  the  cii  cuiusiance  of  the 
bankrupt  anri  his  petitioning  creditor,  having  attended  before  the  commissioners  at 
their  second  meeting,  and  there  produced  their  accounts,  when  the  bankrupt  ob- 
jected to  part  ot  the  demand,  and  the  commissioners  licked  off  such  items  as  he  al- 
lowed, and  struck  a  balance,  though  it  could  not  be  consiilered  as  an  award  or  ad- 
judication by  the  comniissioners,  either  as  arbitrators  appointed  by  the  parties,  or  in 
their  ofiicial  charicter  of  commissioners,  was  still  evidence  to  he  left  to  the  jury  of 
an  admission  by  the  bankrupt.  Jarrett  v.  Leonard,  2  M.  &  S.  265.  But  the 
Court  of  Common  Pleas  determined,  that  in  an  action  b>  the  assignees  against  a 
third  person,  even  an  account  signed  by  the  bankrupi,  charging  himself  with  a  ba- 
lance a  day  before  the  act  ol  bankruptcy,  was  not  admissible  to  p<ove  the  petition- 
ing creditor's  debt,  without  positiv.  prooi  that  the  accounts  had  been  allowed  before 
the  act  of  bankruptcy.    Hoare  v.  Coryton,  4  Taunt.  560. 


5*8 


CASES  OF  BANKRUPTCY. 


Part  It. 

Action  by  or 
against  the 
assignees. 


(l)Haler'. 
Smrdl,  2  Ht" 
&B  25. 

(2)  Abbot, 
r.  Plumbe, 
Dougl.  205. 


(3)  Doe  dem. 
Mawson  v. 
Listoii,4 
Taunt.  741, 


assignment.  The  commission  generally  describes  the  bankrupt 
as  carrying  on  some  particular  trade,  but  this  does  not  bind  the 
plaintiiFto  prove  him  of  the  trade  so  described  ;  for  if  the  com- 
mission is  against  the  proper  person,  the  plaintiff  may  prove 
the  trading  in  any  article,  though  not  described  in  the  comir.is- 
sion.(l)  The  petitioning  creditor's  debt  must  be  proved  by  the 
same  kind  of  evidence  as  would  be  required  in  an  action  against 
the  bankrupt  himself;  if  it  is  by  bond,  the  subscribing  witness 
must  be  called. (2)(6)  If  the  petitioning  creditor  is  an  executor, 
the  probate  must  be  produced  ;  or  if  he  is  himself  assignee  of 
another  bankrupt,  who  was  the  creditor  of  the  bankrupt  in  the 
particular  case,  he  must  give  the  regular  proof  of  the  trading 
and  bankruptcy  of  both  these  persons.(3) 

The  regular  proof  of  the  assignment  will  be  its  production, 
and  proof  by  the  subscribing  witness  ;  and  if  a  former  assignee 
has  been  removed  and  a  new  one  appointed,  the  assignment 
from  the  old  assignee  to  the  new  one  must  be  proved  in  like 
manner ;  for  the  Lord  Chancellor's  order  for  the  purpose  is  not 


{b)  In  an  action  by  the  assignee  of  a  bankrupt  agiUnst  the  SherifT,  the  assignee 
iD'Jst  prove  the  debt  of  the  petitioning  creditor.  Lovett  v.  Cutler,  I  JHass.  Rep.  67. 

Under  the  Act  of  Bankruptcy  in  Pennsylvania,  analogous  to  the  British  Stgtate 
in  a  trial  at  law,  the  creditor  ^may  controvert  tlie  trading,  hankruptcij,  and  confov' 
mily  of  the  defendant,  and  that  the  certificate  is  hnt  prima  facie  and  not  conclusive 
evidinie  of  the  proceedings  before  the  commissioners.  Pleasants  v.  J\Ieng  ei  al.  1 
Ball.  Rep.  380. 

So  in  another  case  the  commission  was  held  to  hQ  prima  facie ,  and  not  conclusive 
evidence  of  the  trading  and  act  of  bankruptcy  of  the  bankrupt.  Rugan\,  West, 
i  Binn.  Rep.  2G3. 

The  certificate  of  a  bankrupt's  conformity  is  conclusive  evidence  of  the  issuing 
the  commission,  and  of  the  trading  and  bankruptcy,  in  an  action  by  tlie  assignees 
against  the  debtor  of  the  bankrupt;  but  is  only  prima  facie  evidence  of  such  facts, 
in  an  action  by  a  creditor  against  the  bankrupt,  and  under  the  replication  that  the 
certificate  was  unfairly  obtained,  it  was  competent  for  th<-  plaintiff  to  prove  that  the 
defendant  was  not  a  trader  within  the  meaning  of  the  Act  of  Congress.  Blythe  et  al. 
V.  Johns,  5  Binn.  Rep.  247. 

In  JVorth  Carolina,  the  production  of  the  commission  and  assignment  is  proof  of 
the  trading  bankruptcy,  the  time  thereof,  and  the  appointment  of  the  plaintiff's  as- 
signees. Barclay^s  ass   v.  Carten,  2  Hayxv.  Rep   243. 

In  Connecticut;  it  has  been  ruleil,  that  under  the  late  Bankrupt  Law  of  the  United 
States,' the  validity  of  a  commission  of  bankruptcy  cannot  be  impeached  before  the 
Common  Law  Courts.  Baraloio  y.  Adams,  2  Day's  Rep.  70. 

It  is  competent  for  any  person  interested  to  contest  the  petitioning  creditors  debt ; 
but  whether  creditors  who  have  received  a  dividend  under  the  commission  are  not 
prevented  dubitatnr.  Joy's  les.  v.  Cossdrt,  2  Bull.  Rep.  126.  5.  C.  1  Feates' 
Rep.  50. 

In  an  action  by  the  assignees  of  a  bankrupt,  confession  of  judgment  admits  the 
assignment  and  right  of  action,  U>  be  in  the  plaintiff,  agreeably  to  the  narr.  KeUv 
v.Holdship,  1  BroTvne''s  Rep.  S&. — Am,  Ei>, 


4 


CASES  OF  BANKRUPTCY.  g^g 

sufficient  to  take  the  property  out  of  the  old  assignee,  and  vestCh.  Xir.s,  i. 
it  in  the  new  one.(l)     But  though  the  production   and  resular  ^'^'""  ^^  ""^ 

rr,t  •  ^  ■     ■  1-,  ..         against  the 

proor  or  the  assignment  is  in   general  required,  yet  where  the    assigntes. 
defendant  had  treated  with  the  plaintiff"  as  the  assignee,  ac-  - 
counted  with  him  as  such,  and  paid  part  of  the  debt,  that  fact(i)  P-'oxam 
was  held  to  be  prima  facie  evidence  of  the  assignment,  and  tosEasMoV.' 
dispense  with  formal  evidence  to  prove   itY2)     The   mode  of,  ,,^  .      -• 

f  .      ,,  .  ,11  ,  ,  ,        ('^)  Uickenson 

proot  m  these  cases  is  rendered  much  more  easy  by  a  late  Actr;.  Coward, 
of  ParIiament,(S)  by  which  it  is  enacted,  "  That  in  any  action  '  ^**^''^''^ 
by  or  against  any  assignee  of  any  bankrupt,  the  commission  of(3)49Geo.  s, 
bankrupt,  and  the  proceedings  of  the  commissioners  under  the'''  '^''*-  ^^ 
same,  shall  be  evidence  to  be  received  of  the  petitioning  credi- 

11  tor's  debt,  and  of  the  trading  and  bankruptcy  of  such  bankrupt, 
unless  the  other  party  in  such  action  shall,  if  defendant,  at  or 
before  the  time  of  his  pleading  to  such  action,  and  if  plaintiff, 
before  issue  joined  in  such  action,  give  notice  in  writing  to  such 
assignee,  that  he  intends  to  dispute  such  matters  or  any  of 
them;  and  where  such  notice  shall  have  been  given,  if  such  as- 
signee shall  at  the  trial  prove  the  matter  so  disputed,  or  the 
other  party  shall  at  the  trial  admit  the  same,  the  Judge  before 

j  whom  the  cause  shall  be  tried,  shall,  if  he  shall  see  fit,  grant  a 
certificate  that  such  proof  or  admission  was  made  upon  such 
trial,  and  such  assignee  shall  be  entitled  to  the  costs,  to  be  taxed 
by  the  proper  oflicer,  occasioned  by  such  notice  ;  and  such  costs 
shall,  in  cas^  the  assignee  shall  obtain  a  verdict,  be  added  to  his 
costs  ;  and  if  the  other  party  shall  obtain  a  verdict,  shall  be  set 
offor  deducted  from  the  costs  which  such  other  party  would  other- 
wise be  entitled  to  receive  from  such  assignee."  It  is  to  be  ob- 
served, that  the  Act  of  Parliament  has  made  the  proceedings 
under  the  commission  "  evidence  to  be  received"  of  the  facts 
proved  before  the  commissioners,  but  has  not  said  that  they 
shall  be  conclusive.  It  has  therefore  been  held,(4)  that  though  (4)  Mills  v. 
a  party  who  has  not  given  notice  of  his  intention  to  dispute  the  ^  s'^ssfi^^ 
facts  necessary  to  support  the  commission,  cannot  call  on  the 
other  side  to  give  further  evidence  than  the  production  of  the 
proceedings,  yet  that  he  is  not  precluded  from  giving  evidence 
on  his  part  to  contradict  the  fact  so  proved. 

The  Act  of  Parliament  extends  not  only  to  those  cases  in 
which  the  assignees  are  themselves  parties  as  plaintiffs  or  de- 
fendants, but  also  to  those  where  the  party  must  necessarily 
deduce  his  title  under  the  commission  ;(5)  but  in  actions  be- (5)  Symonds 
tween  third  persons,  when  the  validity  of  the  commission  comes-g^.^^'^^^'^^ 
only  incidentally  into  question,  the  law  remains  the  same  as 


550  CASfiS  OF  BANKRUPTCY. 

Part  II.     before  the  Statute,  and  the  several  facts  necessary  to  establish 

'^eanlsuhr  *'^®  bankruptcy  must  be  proved  by  the  ordinary  evidence.(l)     A 

assignt-es.    person  who  has  proved  his  debt  under  the  commission,  is  not 

— thereby  precluded   from    disputing   the   petitioning   creditor's 

(1)  Doe  dam.  debt,  or  calling  the  same  evidence  as  any  other  third  person.(2) 
Linton,  4  The  modes  of  assigning  the  personal  and  real  property  of  the 

Taunt.  741.    bankrupt,  differ  not  only  in  form,  but  materially  in  their  effects 
(£)  Rankin     on  those  different  species  of  property.     In  the  former  the  com- 
16  Ea'srigi    ™issioners  merely  execute  the  deed   and  that  by  relation  vests 
all   property  in  the  assignee  from  the  time  of  the  act  of  bank- 
ruptcy.    But  the  freehold    property  of  the  bankrupt  can  be 
transferred  only  by  bargain  and  sale  enrolled  in  one  of  the 
King's  Courts  of  record  ;  and   though  when  so  enrolled,  it  de- 
Doe  dem.       feats  all  grants  made  after  the   bankruptcy,  yet  it  vests  the 
5f' '*I'".^'a  ,c  estate  in  the  assignees  only  from  the  time  of  the  enrolment,  so 
&s.  446.        that  a  demise  by  them  in  ejectment  must  be  laid  after  that  time. 
Rex  t>.  Hop-  The  enrolment  being,  thus  made  a  part  of  the  title,  the  assignee 
495*^    ^'^^'  "^"st  prove  that  as  well  as  the  execution  of  the  deed  ;  but  the 
officer's  endorsement,  or  an  examined  copy  of  it,  is  sufficient  to 
prove  not  only  the  fact  of  enrolment,  but  the  time  it  was  made. 
Vide  Evans        But  in  cases  where  the  assignees  themselves  make  a  contract 
CowpTseg     ^^^^  ^  third  person,  and  have  occasion  to  sue  upon  it,  it  seems 
to  be  unnecessary  for  them  to  name  themselves  assignees  in  the 
declaration,  or  to  give  evidence  to  prove  that  they  fill  that  rela- 
tion. 


SECTION  11. 


In  actions  by  and  against  the  bankrupt. 

Sect.  2.  Where  a  person  has  been  found  a  bankrupt,  and  brings  an 

h\nkruY     ^ction  against  the  messenger  or  assignees  for  the  goods  taken, 

the  defendant  must  be  prepared  with  evidence  to   prove   the 


Mercer  w.      trading,  &c.  as  in  tlie  other  case,  notwithstanding  the  bankrupt 

Wise,  3Esp.  }^as  surrendered  to  his  commission,  and  passed  his  examination. 

But  when  the  bankrupt  is  sued  for  any  debt  from  which  he  is 

0.  30,  S.7.      discharged  by  his  certificate,  and  pleads  such   discharge,*  n» 

*  Wlit-n  a  bankrupt  who  has  obtained  his  certificate  is  afterwards  sued  for  any 
debt  due  before  bis  bankruptcy,  tlie  Statute  gives  a  general  form  of  plea  that  ht 


CASES  OF  BANKRUPTCY.  ggj^ 

further  evidence  is  required  on  his  part,  than  the  production  of  Ch.  Xll.  s.  2, 
the  certificate  allowed  by  the  Lord  Chancellor;  and  the  credi-'^f°"  ='sa'nst 

.  .  ■  f  bankrupt. 

tor  may  avoid  it  by  shewing  that  it  was  obtained  unfairly  and 

by  fraud,  or  else  that  there  has  been  a  concealment  by  the  bank-^i)  hqx^^^^ 
runt  of  effects  to  the  value  of  10^.     As  to  what  shall  be  deemed  y-  Caize, 

.    .  .  .  Uougl.  228 

an  unfair  or  fraudulent  obtaining  of  a  certificate,  it  has  been  Holland  i;. 
holden,  that  if  money  be  given  either  with  the  bankrupt's  pri-  o"'"'r,'v,' 
vity  or  without  to  any  one  creditor  to  induce  him  to  sign  it,(l)95. 
or  to  withdraw  a  petition  which  he  has  presented  against  it,(2).ovg 
the  certificate  is  void.     But  if  the  plaintiff'  prove  an  omission n.  Riady, 
to  account  for  effects  amounting  to  10/.  the  bankrupt  may  prove  547'  *''''*''^- 
that  it  was  not  wilful  or  fraudulent.(3}(c) 

(3)  Catheart 
-—— V.  Blackwood^ 

was  discharged  as  a  bankrupt,  and  that  the  cause  of  action  accrued  before  such  time  r'"     ,  ' 
as  he  became  bankrupt.     This  plea  concludes  to  the  country,  and  on  the  similiter  ^  (-„„  jr 
being  added,  a!l  the  special   matter  either  to  support  or  defeat  the  certificate  may  c.  30  s.  12, 
be  given  in  evidence  without  further   pleading  on  either  side.     Alsop  v.  Price, 
Songl.  160.     Hughes  v.  Morlcy,  1  Barn.  &  Aid.  22.     It  was  for   some   time 
doubted  whether  ihis  general  plea  was  given  to  the  defendant  in  cases  where  tiie 
certificate  was  not  compli^ted  till  after  the  commencement  of  the  action,  (vide  Tow- 
er V.  Cameron,  6  East,  413 ;)  but  it  is  now  settled  that  the  defendant  may  sc*  plead 
if  the  certificate   be  allowed  any  time  before  plea  pleaded,  though  after  the  com- 
mencement of  the  suit,  provided  he  were  a  bankrupt  before.     Harris  v.  James,') 
East,  82. 

•  This  case  is  mentioned  id  Co.  B.  L.  284,  but  no  notice  is  there  taken  of  this 

poiiit. 

(c)  An  action,  y)ending  ae:ain3t  a  bankrupt,  at  the  time  he  obtained  his  certificate  for 
a  demand,  which  was  or  might  have  been  proved  under  the  commission,  cannot 
afterwards  be  prosecuted  to  judgment.  Payson  adm.  v.  Payson  et  al.  1  JMass.  Relj . 
283. 

Statutes  of  bankruptcy  of  one  of  the  United  States,  will  not  bind  a  crerlitor,  who 
is  an  inhabitant  of  that  State,  unless  the  contract  were  made  there.  Proctor  v, 
Moore,  1  Mass.  Rep.  198. 

If  the  bankrupt  before  his  bankruptcy  received  money  to  put  put  to  interest 
which  he  neglected  to  do,  he  was  held  to  be  discharged  by  his  certificate.  Hatten 
V.  Speyer,  1  Johns.  Rep.  37. 

If  a  house  be  taken  for  a  year  before  an  act  of  bankruptcy,  and  the  bankrupt  con- 
tinue in  possession  afieiwards,  he  is  not  dischargeil  from  the  subsequent  rent  by  his 
certificate.  Hendricks  \ .  Jtidah,'i  Caines''  Rep.  25. 

So,  a  surely  in  a  bond,  who  pays  the  same  affer  the  discharge  of  the  ptincipal, 
is  tiijt  barred  bv  such  discharge.  Haddens  v.  Chambers,  2  Dull.  Rep.  230.  S.  C. 
1  Yeati.s^  Rep.  529. 

A  commission  of  bankruptcy,  without  a  certificate,  is  no  bar  to  a  debt  proved  un- 
der the  com  mission ,  though  the  plaintifi"  have  received  a  dividend  Lummas  v.  Fair- 
ftdd.  S  Muss    Rep.  248.  ■  ' 

AVhen  a  cordinission  of  bankrunicv  against  the  principal,  wil;  discharge  the  bail. 
Vide  Mibier  v.etal.  Gref-n,  'i  Johns.  Can  283.  Kineetal.  v.  Ligniham,  ibid. i03, 
Buely    Gordon,  f>  Jnhns.  Rep.  i2ti.  Spam.ine:  al.  v.  Drake,  1   Caines'  Rep.  9. 

W.'fcre  the  p-is'i'  of  the  dtf-ndiiut  i.ad  he  n  .  i-ichi.g' d  hv  pioceediiig  under  an 
msolviiit  tail)  \ii  Pennsylvania,  oi  which  the  plaauiff  had  duenulice,  and  the  debt 


55S  CASES  OF  BANKRUPTCY. 

Part  II.         By  another  cause,  in  the  same  Act  of  Parliament,  it  is  enacted. 
Action  againsuc  ^}^^^  ^j^g  ^(.^  gl^^jj  ^^^^  gj^g  2ii\y  privilege,  benefit,  or  advan- 

tage,  to  any  bankrupt,  who  shall,  for  or  upon  marriage  of  any  of 

his  children,  have  given,  advanced,  or  paid,  above  the  value  of 
100/.  unless  lie  or  she  shall  prove  hy  his  or  her  books  fairly  kept, 
or  otherwise  upon  his  or  her  oath,  or  (being  a  Quaker)  affirma- 
tion, before  the  major  part  of  the  commissioners  in  such  com- 
mission named  and  authorised,  that  he  or  she  had  at  the  time 
thereof  over  and  above  the  value  so  given,  &c  remaining  in 
goods,  wares,  debts,  ready  money,  or  other  estate,  real  or  per- 
sonal, sufficient  to  pay  and  satisfy  unto  each  and  every  person 
to  whom  he  or  she  was  any  ways  indebted,  their  full  and  entire 
debts  ;  or  who  hath  or  shall  have  lost  in  any  one  day  the'  sum  or 
value  of  51.  or  in  the  whole  the  sum  or  value  of  100/.  within  the 
space  of  twelve  months  next  preceding  his,  her,  or  their  becoming 
bankrupt,  in  playing  at  or  with  cards,  tables,  dice,  tennis,  bowls, 
billiards,  shovel-board ;  or  in  or  by  cock-fighting,  horse-races, 
dog-matches,  or  foot-races,  or  other  pastimes,  game,  or  games 
whatsoever,  or  in  or  by  having  a  share  or  part  in  the  stakes,  wa- 
gers, or  adventures ;  or  in  or  by  betting  on'  the  sides  or  hands 
of  such  as  do  or  shall  play,  act,  ride,  or  run,  as  aforesaid ;  or 
that  within  one  year  before  he  or  she  became  bankrupt  shall 
have  lost  the  sum  of  100/.  by  one  or  more  contracts  for  the  pur- 
chase, sale,  refusal,  or  delivery,  of  any  stock  of  any  company  or 
corporation  whatsoever,  or  any  parts  or  shares  of  any  govern- 
ment or  public  funds  or  securities,  where  every  such  contract 
was  not  to  be  performed  within  one  week  from  the  time  of 
making  such  contract,  or  where  the  stock  or  other  thing  so  bought 


was  contracted  there,  the  Circuit  Court  dischaigfd  him  on  common  bail,  but  re- 
fused to  quash  the  capias.  Iteadv.  Chapman,  1  feters^  Rep.  404. 

In  the  case  of  Jiiitish  subjects,  a  discharge  under  the  bankrupt  hiws  o^ England, 
will  pif.tKct  the  ptrson  of  a  bankrupt  in  this  State.  Harris  ?.  J\fandeville ,  2  Dall. 
Rep.  256.  S.   C.  2  Yeates'  Rep.  99. 

Where  the  det'entlsnt  neglected  to  avail  himself  of  his  discharge  under  the  insol- 
vent law,  but  allowed  judgment  to  be  perfected  against  him,  the  Court  would  not, 
on  motion  of  his  bail,  order  an  exoneretur  on  his  bail  piece.  jMechanics^  Bank  \. 
Hazard,  9  Joh7is.  Rep.  59'2. 

"When  conveyances  made  by  bankrupts,  are  void,  being  made  in  contemplation  of 
bankruptcy.  \'"ide  Ogden  et  al.  v.  Jackson,  1  Johns.  Rep.  370.  Phoenix  v.  Dey^ 
et'al.5  D0.AI2.  Sands  et  al.  \ .  Cod-wsie  et  al.  i  JDo.  5^6.  Selfiidge  v.  GiU,4Mass. 
Rep.  95.  Hecoster  v  St.  Lee  Lav ennm^e,  ibid.  101.  Gilmore  v.  JV'.  .^imeiica  Land 
Co.  \  Peters'"  Rep.  460.  Rwidlr  v.  Murgatroyd's  les.  4  Dall  Rep.  304.  Reichart 
V.  Castator,  5  JBinn.  Rep.  109 

Under  the  Bankrupt  Act  of  Pennsylvania,  evidence  was  admissible  to  shew  that 
the  certificate  of  the  defendant  was  unfairly  obtained.  Pleasants  v.  Men^  et  al. 
I  Dall.  Rep.  380.— AM.  Ed. 


CASES  OF  BANKRUPTCY.  553 

or  sold,  was  not  actually  transferred  or  delivered,  in  pursuance  ch.  XII.  s.  2. 
of  such  contract."  /SS"' 

There  appears  to  be  a  remarkable  difference  in  the  words  of ^ 

these  two  sections  in  the  same  Act  of  Parliament;  by  the  first, 
it  is  expressly  enacted,  that  the  certificate  shall  be  sufficient 
evidence  for  the  defehdant,  a^d  a  verdict  shall  pass  for  him, 
"  unless  the  plaintiff  can  prove  the  certificate  was  obtained  un- 
fairly and  by  fraud,  or  unless  the  plaintiff  shall  make  appear 
any  concealment,"  &c.  whereas  by  the  other  section  it  is  only 
provided  that  nothing  in  the  Act  shall  extend,  or  give  or  grant 
any  privilege,  benefit,  or  advantage,  to  a  bankrupt  falling  within 
the  description  contained  in  it-  It  has  been  generally  supposed, 
that  in  the  cases  mentioned  in  the  12th  section,  the  certificate  is 
void,  and  that  the  defendant  may  be  precluded  from  his  dis- 
.  charge  by  proving  the  circumstances  at  Nisi  Prius.  Several  Vi<Ie  Co.  B. 
instances  have  occurred  where  the  nature  of  the  gambling  in 454  Lewis 
which  the  bankrupt  has  been  engaeed,  has  been  examined  into''  P'^'^y, 

.  »  e?      '_  _  1 H. Black.  29. 

in  a  Court  of  Law,  in  order  to  determine  whether  the  certificate  Bateson  v 
was  not  thereby  avoided  ;  and  in  cases  within  that  section  ver-  ^il'''''"''' 
diets  have  passed  for  the  plaintiff.  But,  perhaps,  it  may  be 
woi'th  consideration,  whether  this  clause,  so  differently  worded 
as  it  is  from  the  other,  was  meant  to  extend  further  than  to  give 
authority  to  the  Lord  Chancellor  and  the  commissioners  to  re- 
fuse the  allowance  in  the  cases  mentioned  in  it.  In  one  instance 
mentioned  in  that  section,  a  mode  of  inquiry  is  pointed  out, 
quite  contrary  to  the  rules  of  evidence  in  a  Court  of  Law;  if 
the  bankrupt  has  given  more  than  100/.  to  either  of  his  children, 
he  may  prove  by  /iis  books  fairly  kept,  or  on  his  oath  or  affirma- 
tion before  the  commissioners,  that  he  then  had  sufficient  to  pay 
all  his  creditors  ;  an  advantage  which  he  could  never  have  in  an^ 
action  against  himself;  and  it  should  seem,  that  if  the  Legis- 
lature had  meant  that  the  misconduct  mentioned  in  that  sec- 
,  tion  should  have  the  same  effect  as  a  concealment  to  the  value 
^  of  10/.  they  would  have  included  those  cases  in  the  same  sec- 
tion, and  not  have  provided  for  them  by  a  different  clause 
couched  in  very  different  language.* 

•  This  point  was  made  in  Hughes  v.  Morley,  I  Barn.  &  Md.  2'2,  where,  as  far 
as  concerns  the  provision  in  the  case  of  money  lost  at  play,  it  was  held  that  this 
clause  of  the  Act  might  be  taken  advantage  of  on  the  usual  replication  at  JNisi  Prius. 
As  to  the  provision  in  the  case  of  more  than  100/.  given  to  a  child  m  marriage, some 
difficulty  seems  to  have  been  felt  by  the  Judges  ;  Abbott  J .  and  Holhotd  .J.  seem 
to  have  thought  that  the  whole  of  this  inquiry,  \iz.  the  ability  of  the  bankrupt  at 
the  time  he  gave  the  money,  could  not  be  entered  into  at  J^isi  Prius,  but  that  it 
was  competent  for  the  plaintiff  to  prove  the  fact  of  more  than  100/.  being  givfn 

4  B 


5d^  CASES  OP  BANKRUPTCY. 

Part  ft.         The  statute  24  Geo.  2,  c.  57,  s.  9,  has  made  another  provision 
'  bankrui!t"^*  '^^  ^'^'  ^^  ^'^^  '^^h  Section  of  the  former  Act  of  Parliament,  by 
_________  enacting,  that  where  any  person  shall   swear  to  any  fictitious 

debt,  and  shall  sign  the  certificate  in  respect  thereof,  that  in  such 
case,  unless  the  bankrupt  shall  before  such  time  as  the  com- 
missioners shall  have  signed  the  certificate,  by  writing  by  him 
signed  and  delivered  to  one  or  more  of  the  commissioners  oi 
assignees,  disclose  the  fraud  and  object  to  the  reality  of  the 
debt,  such  certificate  shall  be  nidi  and  void  to  all  intents  and 
purposes  ;  and  such  bankrupt  shall  not  in  such  case  be  entitled 
to  be  discharged  from  his  debts,  or  to  have  or  receive  any  oi 
the  benefits  or  allowances  given  by  the  former  Act.  In  a  case 
of  this  kind  the  plaintiff  must  be  prepared  to  prove  that  the  debt 
was  fraudulent,  and  the  bankrupt  must  shew  that  he  gave  the 
iiaieson  r.  notice  required  by  the  Act.  Lord  Kenyon  held  that  even  the 
I  Esp.Cas. 4.3.  petitioning  creditor's  debt  might  be  impeac!;ed  at  JSisi  Priifsmi 
the  purposes  of  this  clause. 

Another  case,  in  which  the  effect  of  the  certificate  may  be 
partially  avoided  by  the  creditor,  is  where  a  commission  issues 
against  a  person  who  has  been  a  bankrupt,  or  compounded  with 
his  creditors,  or  discharged  as  an  insolvent  debtor,  and  has  not 
paid,  or/his  estate  is  not  in  a  condition  to  pay,  fifteen  shillings 
in  the  pound  under  the  second  commission.  In  this  case  his 
future  effects  continue  liable,  and  even  persons  who  had  signed 
'*^^^°'^'  his  certificate  might,  before  the  late  Act  of  Parliament,  have 
maintained  actions  against  him  :  but  since  that  Statute  it  should 
seem  that  the  mere  proving  a  debt  under  the  second  commission, 
is  an  election  within  its  provision,  which  deprives  the  creditor 
of  his  remedy  by  action  in  the  cases  excepted  by  the  Statute  of 
Read  v.  5  Geo.  2.  It  is  clearly  holden  that  it  does  so  in  cases  where 
.3  m'^&'^S.78.^'^®  bankrupt  having  been  in  that  situation,  or  compounded  with 
his  creditors  before,  afterwards  paid  the  full  amount  of  their 
debts. 

If  the  plaintiff  produce  the  first  commission  and  the  proceed- 
ings under  it,*  and  prove  that  the  defendant  submitted  to  it,. 

then,  and  that  the  defendant  might  avoid  the  effect  of  that  evidence  by  shewing  the 
amount  of  his  property  before  the  commissioners;  neither  of  the  Judges  explain 
how  the  verdict  is  to  be  taken  in  llip  mean  time. 

*  In  Jiateson  v.  ffartsink,  cited  above,  tlie  pl:iif,liff,  in  order  to  shew  that  the 
defeiulant  had  concealed  lo  tlie  vah  e  of  10/  served  the  solicitor  under  the  commis- 
sion with  a  siilijmna  duces  tecum  to  prrxhice  the  proceedings  under  the  commission. 
But  Lord  Kevtox  is  reported  to  hMve  said,  tliat  bo  was  not  onlv  not  bound  to  pro- 
duce ibem,  but  that  it  would  be  criminal  in  hiin  to  do  it.     Thev  were  not  his  pa- 


CASES  OF  BANKRUPTCY.  ggg 

chat  will  be  sufficient  without  further  evidence.     After  which  it  Ch.  XII.  s.  2. 
should  seem  that  it  will  be  incumbent  on  the  defendant  to  prove  Action  atiamst 

that  his  estate  is  sufficient  to  pay  fifteen  shillings  in  the  pound ' 

under  the  second  commission.     But  it  is  clearly  settled  that  ifj,.irsw 
the  plaintiiFgive  any  evidence  to  shew  a  probability  that  the  es-  i'»aii;ii(),  i  b. 
tate  will  not  produce  that  sum,  he  may  maintain  his  action  at 
any  time,  and  is  not  obliged  to  wait  until  the  expiration  of  the 
time  allowed  for  making  the  dividend. 

■  The  Statute  in  this  case  giving  judgment  against  the  future 
effects  of  the  bankrupt  only,  there  seems  to  be  some  difficulty 
in  taking  such  judgment,  merely  on  the  similiter  being  found 
for  the  plaintiff'.  We  have  before  seen  it  laid  down  as  a  gene- 
ral rule,  that  all  matter  which  is  to  avoid  the  certificate  may 
be  given  in  evidence  on  such  a  replication,  and  such,  1  believe, 
has  been  the  practice  in  these  cases.  The  only,  case  that  I  am  Wilson  v. 
aware  of,  in  which  an  attempt  was  made  to  introduce  special  ^'^'"^'^g  ^'^* 
pleading,  failed,  because  the  plaintiff  prayed  judgment  gene- 
rally, instead  of  against  the  future  effects  only  ;  but  the  Court 
also  \xSt^  the  replication  to  be  bad,  because  it  concluded  with  a 
verification  when  the  plea  concluded  to  the  country,  thereby  in- 
timating that  the  similiter  only  should  have  been  replied. 

Xhfc  before-mentioned  cases  make  the  certificate  void,  or  re- 
strain the  extent  of  its  operation,  ah  initio,  but  the  bankrupt 
may  by  his  own  voluntary  act  also  deprive  himself  of  the  benefit 
of  it ;  and,  therefore,  if  it  be'  proved  that  he  promised  to  pay 
the  debt  after  he  had  obtained  his  certificate,  though  no  new 
consideration  is  shewn,  such  promise  will  bind  him,  and  may 
.be  given  in  evidence  on  a  count  founded   on  the  original  consi- 
deration.(1)     But  in  a  case(2)  where  the  promise  was  condi-(i)  Williams 
tional  to  pay  when  he  should  be  able,  it  was  ruled  by  Gould p  |^i^''''    „ 
and  Heath,  Justices,  contrary  to  the  opinion. of  Lord  Lough-  68. 
BOROUGH,  C.  J.  that  evidence   must  be  given   of  his  ability,  fc,\  yi.ie  Bcs. 
though  probably  his  general   appearance  and  credit  would  bef«'<i  7'- Saun- 
deemed  sufficient  to  establish  this  fact.  Ii6*'' 

As  to  the   persons  who  are  competent  to  give  evidence  in 
cases  of  this  nature,  vide  ante.  Part  L  p.  242. 

pers,  but  those  of  his  clients,  the  assignees  of  the  bankrupt's  estate.  It"  tlie  plaintiff 
wanted  them  he  should  apply  to  the  Lord  Chancellor  to  have  them  enmlled,  and 
then  use  a  copy  as  (-vidence.  But  in  a  subsequent  case  Ltird  Ellknbokougii  said 
that  he  considered  the  prriductioii  as  a  public  duty.  Pearson' v.  Fletcher,  5  Esp, 
90;  and  see  Corson  v,  Dubois,  1  Holt,  239,  and  Cohen  v.  Templar,  2  Slarkie,  260, 
accord . 


(  556  ) 


CHAP.  XIIL 

OF  THE  EVIDENCE  IN  ACTIONS    BY  AND  AGAINST  AN  EXECUTOR 
OR  ADMINISTRATOR. 

SECTION  I. 

In  actions  by  an  executor  or  administrator. 

Part.  II.         When  an  action  is  brought  by  an  executor  or  administrator 
executor,  &c.  on  a  cause  of  action  arising  in  the  life-time  of  the  deceased,  and 


the  defendant  pleads  only  the  general  issue  thereto,  it  is  suffi- 
cient for  the  plaintiiF  to  prove  the  same  facts  as  must  have  been 
adduced  in  evidence  by  the  testator  or  intestate,  had  the  action 
been  brought  by  him.Ca)     The  plaintiff  need  not  on  this  issue 


Actions  by  and  agamst  executors,  &c. 

(a)  An  action  of  replevin  survives  the  death  of  the  plaintiff  hwt  not  of  the  defend- 
ant.   Pitts  exr.  v.  Hale,  3  Muss.  Rep.  321 .    Mellen  et  al.  v .  Bald-win,  A  Do.  480. 

Trover  will  lie  in  favour  of  an  administrator  for  goods  taken  and  converted  in  the 
life-time  of  the  intestate.  Kirby  v.  Clark,  1  Booths  Rep.  389. 

So  an  action  of  trespass  will  lie  in  tavour  of  the  administrator  for  entering  upon 
lands  and  burning  the  mills  of  the  intestate  during  his  life-time.  Griswold  v.  Brown, 

1  Day's  Rep.  180. 

An  action  of  debt  will  lie  against  an  administrator  on  a  judgment  recovered  by 
the  intestate  in  his  life-time.  Wooster  v.  Bishop,  2  Roofs  Rep.  230. 

An  action  on  the  case,  for  expenses  incurred,  in  defending  against  a  groundless 
suit,  cannot  be  mnintained  by  the  executor  of  such  defendant.    Deming  v.  Taylor, 

2  Daifs  Rep.  285. 

In  JVew  York,  executors  may  have  trespass  for  wasting  and  destroying,  as  well  as 
faking  and  carrying  away  the  goods  of  the  testator.  Snider  et  al.  v.  Croy,  2  Johns. 
Rep.  227. 

Actions  arising  from  tort  or  misfeasance,  do  not  survive  against  executors. 
Franklin  v.  Low  et  al.  1  Johns.  Rep.  396. 

An  udminiftrator  is  not  liable  for  a  personal  tort  or  misfeasance  of  ihe  intestate. 
M'Evers  v.  Pitkin,  1  Root's  Rep.  216. 

In  Soi/th  Carolina,  an  action  of  trespass  or  tort  under  the  English  Statute  will 
survive  to  a  testator's  executors;  and  though  it  does  not  survive  against  them,  yet 
by  waving  the  tort  and  going  for  the  value  of  the  thing,  assumpsit  for  money  had 
and  received  will  survive  as  well  for  as  against  executors.  Middleton's  exrs.  v. 
Robinson,  1  Bay's  Rep.  58. 

In  Maryland,  an  executor  cannot  bring  an  action  for  overflowing  lands  of  the 
testator  in  his  life-time.  M' Laughliny .  Dorsey,  1  H.  &M'Hen.  Rep.  224. 

An  action  for  a  forfeiture,  incurred  under  a  penal  act,  being  brought  by  the  plain- 


ACTIONS  AGAINST  EXECUTOR  OR  ADMINISTRATOR..  55^ 

produce  the  probate  or  letters  of  administration  to  the  jury,(l)ch.  xiii.s.i. 
nor  will  the  defendant  be  permitted  to  shew  that  they  do  not    ^•=^'""  ^y 

■  •  I     /•  J        c  executor,  &c, 

m   fact   exist,  or  that    they  are   void   for  want   or    a    proper  _______^ 

stamp.(2)     To  entitle  himself  to  do  this,  it  is  necessary  for  the^j^^^j^^^^^g,^ 
defendant  to  traverse  their  existence  by  the  plea  of  ne  unquesv.  Marsh,  2 
executor,  or  ne  ungues  administrator,  and  then  the  very  produc-^gi  ^^'" 
tion  of  the  probate  or  letters  of  administration  is  sufficient  evi-      ^, 

,  ,*  /.     1         .••«>«   ,1  1      ■  •!    (2)  Tliynnet' 

dence  on  the  part  of  the  plaintin ;  and  they  can  only  be  avoid-  protheroe, 

ed  by  the  defendant  for  the  causes  which  have  been  already  2  M.  &  s 

•'  •'  553.  1  Sid. 

stated.(3)(6)  350. 

(3)  Vide  ante. 

tiff,  who  dies  pending  suit,  will  not  survive  to  his  administrator.     Estis'  exrs.  v. 
Lenox,  Rep.  in  Co.  of  Conf.  Ti. 

Debt  will  not  lie  against  the  administrators  of  a  Sheriff  for  an  escape  in  the  life- 
time of  their  testator  or  intestate.  JMartin  et  al.  v.  Jiradley,  I  Caines''  Rep.  124. 
Et  vide  Kdiii  et  al.  v.  Ostrander,  8  Johns.  Rep.  159. 

An  action  will  not  lie  against  the  administrators  of  a  post-master  for  money  felo- 
niously taken  by  one  of  his  clerks  out  of  a  letter  delivered  at  the  post-office.  Frank- 
lin V.  Lotv  et  al.  1  Johns  Rep.  396. 

A  foreign  attachment  will  not  lie  against  executors.  JM'Coombe's  exrs.  v.  Dwich 
et  al.  2  Dull.  Rep.  73.    Prin^le  v.  Black's  exrs.  ibid.  97. 

An  executor  is  not  liable  in  foreign  attachment  for  a  'legacy  in  his  hands,  ff?'?- 
chell  V.  Mien,  I  Con.  Rep.  385. 

An  action  of  detinue  will  not  lie  against  the  administrators  for  a  detention  of  slaves 
by  the  intestate  in  his  life  time.     IValker  v.  Hawkins,  1  Uayw.  Rep.  398. 

But  an  action  oi  indebitatus  assumpsit  will  lie  against  executors  for  the  mesne 
profits  of  lands  held  by  their  testator  during  his  life  lime,  unless  the  testator  had  no 
notice  of  the  adverse  title,  or  was  in  possession  under  a  title,  or  such  a  tide  as  he 
was  tmstaken  in,  or  there  was  default  or  laches  in  the  plaintiff.  Haldane  et  ol.  v. 
Duche's  exrs.  2  Ball.  Rep.  176.     S.  C.  1  Yeates'  Rep.  121. 

An  action  of  covenant  will  lie  against  executors  though  they  be  not  specially 
bound  in  the  covenant.     Harrison  v.  Sampson,  2  Wash.  Rep.  -200. 

An  action  of  trover  will  lie  against  executors  for  a  conversion  in  the  life-time  of 
their  testator.  Becrotv  \.  Moneys  exr.  I  Hayu).  Rep.  21.  Clark  v.  Kenan  et  al. 
ibid.  308.  .Avery  v.  Jlioore's  exr.  ibid.  362.  J\P Kimne  et  al.  v.  Oliphanfs  exrs. 
ibid.  4.    Toiule  aclwx.  v.  Lovet,  6  Mass.  Rep.  394. 

On  the  same  principle,  an  action  on  the  case  for  seducing  away  the  plaintiff's 
slave  from  his  service  by  the  testator,  will  lie  against  his  executors.  Cutler  v 
Brown,  2  Hayw.  Rep.  182. 

In  an  action  ot  trover  the  writ  will  abate  by  the  death  of  the  defendant,  and  hi« 
executor  will  not  be  compelltd  to  come  in  and  defend,  Barnard  v.  Harrington. 
3  Mass.  Rep.  228.— Am.  Ed, 

» 

{b)  In  an  action  of  assumpsit  brought  by  executors  under  the  plea  of  7ion-assump- 
sit  nui\  payment,  the  plaintiffs  were  not  bound  toproiliice  their  letters  testamentary. 
MKimmet  al.  v.  Riddle  2  Ball.  Rep.  100.  Et  vide  Axers  v,  Musaleman,  2 
Browne's  Rep.  115.  n 

In  actions  of  debt,  or  on  the  case,  against  an  executor,  for  a  debt  due  from  the 
testator,  the  plea  of  ?j5n  est  factum,  or  non  assumpsit,  is  an  admission'  of  a  will,  of 
which  the  defendant  is  executor :  sccus,  where  llie  action  is  for  A  demand,  for 
which  tlTe  testator  was  not  liable,  as  (ov  a  legacy.  Hanlzw.  Sealy,  6  Biim.  Rep.  i05. 

So  in  an  action  oi  detinue.    Hughes  v.  Clayton,  3  Call's  Rep.  55 i. 


558  ACTIONS  AGAINST 

Pnrtll.         Uut  When  ihe  plaintiff  sues  for  a  wrong  done  to  lumselt  attei 
Action  by    his  testator's  or  intestate's   death,  as  in   trover  for  goods  con- 

execulor,  &c.  ■      /-  ■  •  .  r       i        i      ■  i  •    i      i        i 

verted  after  that  time  ;  or  ejectment  for  lands  in  which  the  de- 


Mearsfieid      ccascd  had  a  term  ;  the  plaintiff  must   (unless  he  has  himself 

xj.  Marsh,  had  such  an  actual  possession  as  is  prima  fade  evidence  of  ti- 
^"'*'         tie)  not  only  give  evidence  of  the  title  of  the  deceased,  hut  also 

14  s.  4/  '  produce  the  probate  or  letters  of  administration,  or  the  Book  ot 
the  Ecclesiastical  Court  wherein  they  are  entered ;  for  without 
this  evidence  he  does  not  shew  that  he  is  entitled  to  the  thing 

General  issue,  in  dispute. (c)  The  general  issue  in  this  case  puts  in  issue  every 
fact  necessary  to  constitute  the  plaintiff's  title  ;  and  if  on  pro- 

Ci)Huntw.    duction  the  letters  of  administration  appear  to  be  void  for  want 

'Taunt'  113  °^  ^  sufficient  stamp,  or  0:1  account  of  their  being  bortd  notabilia, 

Ante,  100.      the  defendant  will  succeed  on  that  plea.(l) 

Statute  of  If  the  defendant  plead  the  Statute  of  Limitations,  and  he  has 

in  fact  acknowledged  the  debt  within  six  years,  but  after  the 
death  of  the  testator,  the  plaintiff  cannot  give  this  in  evidence, 

Wine'^3  East  unless  the  declaration   contain   counts  on   a  promise  to  him- 

^09.  '  'self.C2)(rf) 


Letters  of  administration  need  not  remain  in  Court,  and  are  not  deraandable  af- 
ter issue  is  joined.  Berry's  adms.  v.  PiiUaniy  1  Uayiv.  Rep.  16. 

So  when  an  administrator  declares  as  such  he  inakr-s  a  protV-rt  of  his  letters  of 
administration,  but  if  the  defendant  do  not  crave  oyer  of  tliem,  &c.  and  plead  in 

chief,  then  the  plaintiff  is  not  bound  on  the  trial  to  produce  them.     Exrs 

V.  Oldham,  ibid.  165.— Am.  Ed. 

(c)  Where  an  executor  declares  on  hii  orun  possession,  and  not  as  executor,  he 
does  not  noake  a  profert  of  his  letters  testamentary  in  his  declaration  ;  the  defend- 
ant cannot  crave  oyer  oi  them,  and  therefore  on  the  trial  the  plamidfin  deducing 

his  right  must  shew  the  letters  testamentary.    Exrs.  v.  Oldham,  1  Ifujfu-. 

Hep.  155. 

Where  an  executor  sues  for  a  trespass  or  conversion  after  the  death  of  the  tes- 
tator, he  need  not  name  himself  as  executor.  Frinh  v.  Luyten,  2  Bay''s  Kep.  166 
Et  vide  A'lartinet  al.  v.  Smith,  5  Biim.  Rep.  16.  Langdon  et  al.  admrs.  v.  Potter. 
11  Mass.  Rep.  313. 

In  debt  by  an  administrator,  upon  a  judgment  recovered  by  him  in  that  capacity, 

he  need  not  declare  as  administrator.     Tabnadge  v.   Chapel  et  al.  16  Do.7\ 

Am.  Ed, 

{d)K  new  promise  by  an  executor  oratlministrator,  within  six  years,  takes  the  case 
cJutof  the  Statute  of  Limitations,  as  well  as  in  ai)  action  against  an  administrator  de 
bonis  uon,  as  at;ainsl  the  original  executor  or  administrator,  who  made  the  promise. 
Emerson  v.  Thomson  et  al.  16  Mass.  Rep.  429. 

On  a  trial  of  an  issue  on  the  assumpsit  of  tlie  testator,  within  five  years,  an  as- 
sumpsit of  his  executor  cannot  be  given  in  evidence  to  avoid  the  Statute  of  Limita- 
tions.    Fishery.  Duncan,  1  H.  &'Munf.  Rep.  563. 

So,  on  the  trial  of  an  issue  upon  the  assumption  of  the  testator,  an  atsumpsit  of  bis 


EXECUTOR  OR  ADMINISTRATOR.  559 


SECTION  II. 


In  actions  against  an  executor,  ^-c. 

The  general  issue  in  this  case  also  merely  disputes  the  cause  Chap.  XIII. 
of  action  against  the  deceased,  and  not  tlie  character  or  liability  Action  against 
of  the  defendant. (e)     If,  therefore,  the   defendant  contend  that    <--'"^'="'o''- 
he  is  not  chargeable  as  executor,  or  that  he  has  fully  adminis-  ^^"^•'''*'  '*^"^- 
tered  the  goods  of  the  testator,  he  must  plead  ne  ungues  execu-  ' 

tor,  or  plene  administravit. 

On  the  first  of  these  pleas  the  plaintiff  must  prove  either  that 
the  defendant  has  been  appointed  executor  and  proved  the  will, 
or  else  that  he  has  made  himself  liable  as  such  by  intermeddling 
with  the  goods  of  the  deceased.  To  prove  the  first  fact,  an  ex- 
amined copy  of  the  entry  in  the  proper  book  of  the  Ecclesiastical 
Court  of  Probate  having  been  granted  to  him,(l)  is  sufficient  (i)  Daviesz-, 
without  any  notice  to  him  to  produce  tha  probate.*(/)  But  the  |^  g|j'™^^32 

__^ , , Vide  Garret 

V.  Lister, 
ixecutor  cannot  be  given  in  evidence  to  establish  Uie  demand.  Qnarles'  admr.  v.  1  Lev.  25. 
IJttlepage,  2  Bo.  i:Ol.  Peaselie's 

So  in  J\rorth  Carolina,     miking.i  v.  Murphy,  2  Hayiv.  Rep.  282.  Cas.  lb.  101 

In  an  action  against  an  executor  the  plaintiff  may  state  that  the  testator  being  in- 
<ilebted,  &c.  the  executor  after  tbe  death  of  the  testator  in  consideralion,  &c.  pro- 
mised to  pay  in  order  to  avoid  the  Statute  of  Limitations.  IVtdtakerv.  Wldtaker. 
i".  .Johns.  Rep.  112. 

Et  vide  Henderson  v.  Foots,  3  CaWs  Rep.  248. — Am.  En. 

\e)  An  executor  is  not  liable  for  the  debts  of  the  intestate.  Stoddard  w  Bird, 
Kirb.  Rep.  68. 

.  An  exc«utor's  right  is  confined  to  the  goods  and  chattels  of  the  Intestate,  unless 
the  real  estate  be  wanted  to  pay  the  debts,  or  for  some  purpose  expressed  in  the 
will.     Hnbbel  v.  Pratt,  1  Roofs  Rep.  519. 

Whether,  in  JSlassachusetts ,  an  executor  may  give  insolvency  of  his  intestate,  ir) 
evidence  under  the  general  issue  by  the  Act  of  Assembly  of  that  Slate  i"  Foster  v, 
Mbott,  I  Mass.  Rep.  234.— Am.  Ed. 

•  h)  Elden  V.  Jieddel,S  J^ast,lS7,  it  was  determined,  that  evenyb?' the  party 
claiming  under  the  letters  of  administration,  the  original  books  of  acts  directing  let- 
ters of  administration  to  be  granted  with  the  surrogate's  fiat  for  the  same,  was  suffi- 
cient evidence  of  title  without  producing  the  letters  of  ailir»inistration  ;  and  in  Gor^ 
'on  v.  Dyson,  \  B.  &  B.  219,  the  Court  of  C.  P.  lield,  that  the  production  of  the 
original  will  (by  an  officer  from  the  Spiiitual  Court,)  on  which  there  was  an  en- 
dorsement of  probate  having  beeti  granted  to  the  defendant,  was  evidence  agtiinsi 
him  of  the  contents  of  the  will, 

{/)  '^'■'  !i"  action  against  an  ailministrator,  it  is  a  good  plea  in  bar,  that,  since  the 
commencement  of  the  action  against  him,  lie  has  been  removed  by  due  course  o4 
law  fiom  his  adminislialorship.     Jinvrtt  v.  Je-vetl,  5  .Uir.v   AV/'.  '■''"'•. 


560  ACTIONS  AGAINST 

Part.  II.     more  usual  evidence  on  this  issue  is  the  circumstance  of  tiie 

executor"   tlefcndant's  intermeddling  with  the  goods;  and  any  intermed- 

dling  by  a  stranger,  however  slight,  makes  him  executor  de  son 


Vide  2  T.      ^^r/,  or,  in  other  words,  is  evidence  against  him  that  he  sustains 

Kep.  9".  597.  ^hg  character  of  executor,  and  estops  him  from  saying  to  the 

contrary.     Thus,  if  a  man  take  a  fraudulent  bill  of  sale  of  the 

goods  of  his  debtor,  and  having  suffered  him  to  continue  in  pos- 

(1)  Edwards    =>       .  r.       .  •      .'       .  u-  ir    /■    i  ,      ,    ^  •£■ 

■r.  Harbin,      session,  alter  his  death  possesses  himself  of  the  goods ;( I)  or  it 

fsT'  ^"^'       '^'  ^^^^^^  ■^'  ^^  ^^^^  *'^6  goods  of  the  deceased,  who  does  so  and 

pays  A.  the  money,  both  the  creditor  and  A.  in  these  cases  make 

p'l^*'^^^*^^  themselves  executors  de  son  tort,  and  may  be  sued  generally  as 

2T.  Rep  97.  executors  by  the  creditors  of  the  deceased. (2) 

Plenead-  Supposing,  therefore,  the  defendant  properly  sued  as  execu- 

ministravit.  ,         ,    r    .„  .        ,  .  ..i  •  i     i 

tor,  the  plaintili  on  proving  his  debt  will  be  entitled  to  recover, 

unless  the  defendant  has  pleaded  plene  administravit.(g)  This 
plea  is  either  general,  or  special  as  to  all  the  effects  except  goods 
to  a  certain  amount,  which  are  chargeable  with  debts  of  a  high- 
er nature,  contracted  by  the  testator  in  his  life-time,  or  with 
judgments  recovered  by  other  creditors  against  the  defendant 
as  his  executor.(A) 

In  the  first  of  these  cases,  viz.  the  general  plea  of  plene  ad- 
ministravit,  the  plaintiff"  may  either  reply  that  the  defendant  had 
goods  at  the  time  of  exhibiting  the  bill,  or  state  the  day  when 
the  writ  was  actually  sued  out,  and  served  on  the  defendant, 


Intermeddling  with  the  estate  real  or  personal,  conveyed  by  a  fraudulent  bill  of 
sale  of  a  deceased  person,  will  not  make  a  man  an  executor  de  son  tort.  King  v. 
Lyman,  1  Roofs  Rep.  104. 

The  taking  out  of  letters  of  administration,  after  the  defendant  has  intermeddled 
with  the  estate,  will  not  purge  the  wrong.     Green  v.  Denvit,  ibid.  183. 

As  to  an  executor  de  son  tort,  vide  Osborne  \ .  J\Ioss,  7  jMass.  Rep.  161.  Rat' 
toon  et  al.  v.  Overacker,  8  Johns.  Rep.  97.  Hostler  v.  Scull,  2  Hayw.  Rep.  179. 

(j-)  Under  the  laws  of  Comiecticut,  the  plea  o^ pknc  administravit  is  not  admis- 
sible.   Olcott  V.  Graham,  Kirb.  Rep.  246. 

J'le?ie  a(Imi7usiravit,  IS  a  good  plea  to  a  scire  facias  against  an  administrator, 
founded  on  a  judgment  obtained  against  the  intestate.  Tanner  v.  Freeland,  \  H.& 
M'Hen.  Rep.  34. 

An  executor  must,  at  his  peril,  take  notice  of  a  judgment  against  his  testator,  in 
■what  Court  soever  it  may  be  rendered  ;  and  if  he  exhaust  the  assets  by  paying 
debts  of  inferior  dignity,  he  must  satisfy  such  debts  de  bonis propriis.  JVimmo  r. 
The  Commonwealth,  i  M.  &  Munf.  Rep.  57.— Am.  Ed. 

{h)  An  executor  or  administrator  ought  to  be  permitted  to  amend  his  plea  by 
■p\estd\n^ plene  ad?m7iistravit,  »t  Any  Ume  before  the  trial :  Provided  the  Court  be 
satisfied  it  is  not  for  delay.  Christopher  v.  Anthony,  1  H.  &  Munf.  Rep.  28. — 
Am.  Ed. 


EXECUTOR  OR  ADMINISTRATOR.  g5| 

and  that  the  defendant  had  goods  unadministered  at  that  day.ch.XUi.s.  2. 

Pl.ne 

'dministravit. 


The  only  difterence  in  the  eifect  of  these  two  replications  is,       P^'ne 


that  on  the  first  the  plaintiff' must  prove  that  the  defendant  had 
goods  unadministered  at  the  day  whereon  the  action  appears  by 
the  record  tohavebeen  commenced, and  must  allow  all  payments 
of   equal  degree  with  his  own  debt  made   previous  to  that  day :  Corbet's  Case, 
whereas  by  the  other  he  entitles  himself  to  charge  the  defendant 
with  all  goods  which  thedefendant  had  when  the  writ  was  served. 
In  either  case  the  onus  lies  on  the  plaintiff",  who  must  prove 
that  the  defendant  had  assets  at  the  time  alleged.(i)     To  make 
out  this  fact  he  must  shew  that  the  defendant  possessed  him- 
self of  goods,  or  received  monies  belonging  to  the  testator,  or 
that  he  might  have  so  done   without  gross  negligence  on  his 
part ;  barely  proving  an   admission  by  the  defendant  that  the 
debt  was  a  just  one,  and  should  be  paid  as  soon  as  he  could,(l)(i)  Headsley 
or  a  submission  of  the  amount  of  the  debt  to  arbitration  ;(2)(A)  12  East  232. 
or  the  payment  of  interest  on  a  bond,(3)  will  not  be  sufficient 

.  (2)  Pearsoa 

to  charge  him  with  assets.     In  many  cases  it  becomes  neces-^j,  H(nry, 
sary  for  the  plaintiff"  to  cite  the  defendant,  in  the  Ecclesiastical  ^ '^  Rep.  6. 
Court  to  exhibit  an  inventory,  or  to  file  a  bill  in  equity  against  (3)  Cleverly 

V.  Brett, 
____^ =— there  cited. 

(?)  In  an  action  against  executors  for  a  legacy,  the  plaintiff  must  aver  and  prove 
that  the  executor,  at  thi-.  time  of  bringing  the  action,  had  sufKcient  assets  to  pay  the 
debts  and  legacies.   Deiuitt  et  ux.  v.  Schoonmaker  et  al.  2  Johns.  Rep.  243. 

But  in  an  action  agaitist  an  executor  for  a  debt  flue  from  intestate  on  the  plea  of 
pletie  administravit,  the  onus probandi  lies  on  the  defendant.  Flatt  v.  Robins  et  al. 
1  Johns.  Cas.  276. 

So  in  sitch  a  case  i,t  is  not  necessary  for  the  plaintiff  to  prove  assets  to  recover. 
Slade  v.  Morgan,  I  Hall's  Jim.  Law  Jourti.  334. 

Siill  the  ilefendant-exf-eutor  under  this  plea  need  not  prove  each  debt  to  be  due 
that  he  paid;  when  he  shews  the  payment,  the  plaintiff  may  shew,  if  he  can,  that 
the  debt  was  notdue.  Broiun  v.  Lone,  1  Hayto.  Rep.  159. 

So,  under  this  plea,  the  administrator  need  not  produce  the  subscribing  witness 
to  a  note  or  bond  given  to  hir.i  by  the  intestate,  but  may  prove  it  by  other  means. 
Woolford  v.  Wright's  adms.  ibid.  230. 

An  administration  account  settled  according  to  the  lr\w3  of  the  State,  ^re  prima 
facie  evidence  of  their  own  correctness,  and  it  lies  on  the  opposite  side  to  falsify 
them.  At-weWs  udms.  v.  Milton,  4:  H  &  Munf.  Rep.  252. 

In  an  action  for  a  distributive  share  of  an  estate,  the  settlement  of  the  defendant's 
administration  account  is  not  conclusive.  Kohr  elux,  v.  Fedderhaff et  al,  4  Serg, 
£if  R.  Rep.  248. 

A  settlement  of  accounts  by  executors  in  the  Orphans'  Court,  made  after  the 
commencement  of  an  action  against  them  for  a  legacy,  is  not  conclusive  upon  the 
plaintiffs  in  such  action.  Miller  et  al.  v.  Young  et  al.  2  Serg.  &  R.  Re/i.  518. 

Qiiere,  Whether  it  would  have  been  if  made  before  the  commencement  of  the 
action,  ibid.  Et  vide  Sutton  v.  ConoUy,  1  Sro-ume's  Rep.  App.  Ixiv. — Am.  Ed. 

(fc)  Hoare  v.  Muloy,  2  Yeates'  Rep.  161 .  Schoonmaker  v,  Roose  et  al.  17  J<»/j?i*, 
Rep.  301.— Am.  Ed. 

4  C 


56^  ACTIONS  AGAINSI 

Part.  11.     him  for  a  discovery,  before  he  can  proceed  to  trial  on  this  issue  ; 
admiuibt^avit.  ^"^^  the  inventory  so  exliibited,or  the  answer  put  in  to  the  plain- 
^_____  tiff''s  bill,  will  be  prima  facie  evidence  against  the  defendant  to 
the  amount  of  all  goods  or  debts  mentioned  in  it,  and  put  it  on 
^^^yf  ""''*       '""*  to  shew  that  the  latter  were  desperate.(l)(Z)*  We  have  be- 
l>.  N.  P.  140.  fore  seen  the  method  of  proving  an  answer.     To  establish  an 
inventory  the  defendant's  signature  to  it  should  be  proved  ;  and 
if  the  goods  mentioned  in  it  are  undervalued,  the  plaintiff  mav 
(2)Wiii)oitie  g-ive  evidence  of  that  fact,C2)  or,  I  conceive,  the  fact  of  the  de- 
Bui.  N.  P.      lendant  having  other  goods  not  mentioned  in  it. 
^^^-  As  to  what  effects  shall  be  deemed  assets,  it  has  been  holdeu 

(3)ibiii.  that  for  a  lease(3)  which  the  defendant  has  not  sold,  he  shall  be 
charged  to  the  extent  of  its  value  ;  and  if  the  defendant  has  ac- 
tually made  monej"  of  a  thing  which  came  to  him  from  the  tes- 
tator, though  it  was  quite  uncertain  whether  any  value  could  be 
attached  to  it  or  n.ot,  he  shall  be  chargeable  to  the  creditor  to 
the  amount  of  the  money  so  made  :  as  where  an  executor  sold 
the  goodwill  of  the  deceased's  trade,  Lord  Kenyou  held  it  to  be 

(4)  WoiTai      assets  in  his  hands.(4) 

T).  Hand,  xhe  defendant  being  thus  charged  with  assets,  must  prove. 

Peak.  Gas.  74  .  .     °  .       .  . 

that  before  the  day  mentioned  in  the  replication,  he  had  applied 

them  in  satisfaction  of  the  testator's  debts  of  equal  degree  with 

that  of  the  plaintift'.     In  general,  no  debt  of  a  degree  inferior  to 

it  will  be  allowed  as  an  administration  of  the  effects,  unless 

paid  before  notice  of  the  plaintiff"'s  debt;  and  where  a  judgment 

recovered  on  a  simple  contract  debt  is  pleaded  to  an  action  on 

a  bond,  it  must  be  stated  to  have  been  recovered  before  the  de- 

(5)  Sawyer     fendant  had  notice  of  the  bond, (5)     But  the  case  of  a  judgment 

■V.  Mercer,  ,  .  ,  ,  •    .    .  ,      ,  ,    • 

1  T.  Rep.       recovered  against  the  testator,  which  is  not  docketted,  is  an  ex- 
^"*^-  ception  to  this  general  rule,  the  Stat.  4  &  5  W.  4-  M.  c.  20,  hav- 

ing required  that  step  to  make  the  judgment  of  more  weight 
than  a  simple  contract  debt  against  an  executor  or  administra- 

(/)  The  \>]eao{ plene  administrarit  is  to  be  determined  by  reference  to  the  inven- 
tory only.    Tappen.  v.  Ji^ain  et  al.  12  Johns.  Sep.  120.— Aw.  Ed. 

*  It  is  said  in  Shelley's  Case,  Salk.  296,  that  all  separate  debts  mentioned  in  the 
inventory  shall  be  counted  assets,  unless  a  demand  and  refusal  be  pvoved.  This 
expression  I  conceive  must  mean,  that  the  executor  has  really  attempted  bonajide 
to  obtain  payment,  and  not  made  a  mere  formal  demand  on  the  debtor;  for  in 
Wentiv.  Off.  Ex.  160,  it  is  said,  that  "if  the  executor  be  of  secret  assent  to  the 
embezzlement  of  goods,  whereof  even  the  forbearance  to  sue  for  the  recovery  of 
lliem,  or  the  value  in  damage,  if  it  be  known  where  they  or  the  embezzlers  be,  is  a 
shrewd  evidence  or  proof;  then  shall  the  executor  be  adjudged  an  haver  of  them, 
and  so  stand  charged  as  having  them,  for  pro  possessore  liabetur,  qxii  dolo  desUt 
possidere.    See  also  iawson  v.  Copeland,2  Jiro.  C.  Cas.  156. 


EXECUTOR  OR  ADMINISTRATOR.  gg3 

tor;  in  this  case,  therefore,  the  plaintiff  should  be  prepared  toCh.XiiI.  s.  2. 
prove  the  docket/l)     The  defendant,  on  the  general  plea  of  ,   ^'.''"*^  ., 

^  ^    .  •  t     I  1     >  r  adnimistravit. 

jo/ene  administravit,  is  also  entitled  to  deduct  from  the  assets 
such  money  as  he  has  paid  for  the  probate  or  letters  of  adminis-  ix\  Hickey  v 
tration,  and  for  the  expenses  of  the  funeral :  the  latter  expense,  Hayter,  6  T. 
in  tlie  case  of  an  insolvent  estate,  used  generally  to  be  esti- 
mated at  57.;  for  in  strictness  nothing  is  allowable  but  the  cof- 
fin, ringing,  the  parson,  clerk,  and  bearer's  fees.(2)  (2)  Sulk.  296. 

To  shew  that  the  estate  has  been  properly  applied,  the  de-^^j' 
fendant  must  not  only  prove  payment  of  sums  of  money  to  third 
persons,  but  must  also  prove  that  the  persons  to  whom  such 
payments  were  made  were  creditors  of  the  deceased.  In  ac- 
tions on  simple  contract  this  may  be  proved  by  the  creditor  him- 
self, who  having  no  further  interest  after  payment  of  the  mo- 
ney, is  a  good  witness;  and  this  whether  his  debt  were  by  sim- 
ple contract  or  specialty.(3)  But  when  the  payment  of  a  bond  (3)  Kingston 
debt  is  set  up  in  answer  to  an  action  also  on  a  bond,  the  defend- 3^'  ^^^^'  ^ 

.  ...  LiOra  Ray. 

ant  must,  I  conceive,  call  the  subscribing  witness  to  prove  thesis. 

execution  of  the  instrument,  otherwise  there  is  no  legal  proof 

that  the  debt  paid  was  of  equal  degree  with  that  sued  for.     In 

this  case  of  a  bond,  if  it  appear  that  the  defendant  had  assets  in 

his  hands  to  have  paid  it,  and  that  he  neglected  to  do  so,  he 

will  not  be  allowed  the  interest  incurred  by  his  own  laches. (4)    (4)  Sanderson 

The  defendant  may  also  prove  on  this  plea,  that  being  but  fin  i'sho\v"8i 
admininistrator  during  a  limited  time,  as  durante  ininori  setate 
of  an  infant  executor  (to  shew  which  the  letters  of  administra- 
tion should  be  produced)  he  had  at  the  expiration  of  the  time, 
and  before  the  commencement  of  the  plaintiff's  action,  delivered 
over  the  assets  remaining  in  his  hands  to  the  executor  ;(5)  and  (5)  1  Mod. 
an  executor  de  son  tort  may  in  like  manner  prove  that  he  had  ^"" 
delivered  them(6)  to  the  rightful  administrator  before  the  ac- (6)  Curtis  w. 
tion  was  commenced. (m)     But  where   there  are   two  executors,  3  qJ"^"' 
and  one  receives  a  sum  of  money  due  to  the  testator,  and  pays  ^sr. 
it  over  to  his  co-executor  for  the  express  purpose  of  paying  the 
plaintiff's  debts,  he  cannot  avail  himself  of  the  payment,  but  is 
personally  liable,  in  case  his  co-executor  misapplies  the  mo- 
ney.(7)(w)  Lastly,  if  the  defendant  himself  were  lawful  executor  (^).^'°^^^'^' 
or  administrator,  he  may  prove  a  debt  due  to  himself  from  the  r  J^ast',  246. 

(to)  Lands  of  an  intestate  cannot  be  sold  on  a  judgment  against  the  execuror  de 
son  tort.  JVass  v.  Vansviectniigen,  7  Serg.  &  R.  Rep.  192. 

An  executor  de  son  tort,  cannot  traiisler  [iropei  ty  by  sale.  Hostler  v.  Scull,  2 
Haytv.  Rep.  179. — Am.  Ed. 

(n)  Dovglass  v.  Satterlee  et  al.  11  Johns.  Rep.  21  ,~Asi.  Ed. 


564 


ACTIONS  AGAINST 


P:.rt  11. 

PI-  iv 

admiusitravit. 


(1)  Vide  Rul 

N.  P.  143. 


On  the  plea 
ot  specialty 
debts  out- 
standing. 


(2)  Steele  v. 
Uook,  1  B. 
&  P.  307. 


deceased,  and  if  it  be  of  a  degree  equal  to  that  of  the  plaintifTs, 
retain  to  the  amount  ;  but  an  executor  de  son  tort  is  not  permit- 
ted so  to  retain. (o)  It  has  been  said  that  to  prevent  a  retainer, 
the  plaintiff  ought  to  shew  him  to  be  executor  de  son  tort  by  proof 
of  the  will,  and  that  other  persons  are  executors  :(1)  but  it 
should  rather  seem  that  the  onus  in  this  ca<5e  ought  to  lie  on  the 
defendant  to  shew  himself  the  legal  representative  of  the  de- 
ceased, than  on  the  plaintiff" to  shew  the  contrary  ;  for  the  plain- 
tiff" knows  nothing  more  of  his  title  than  finding  him  in  posses- 
sion of  the  effects.  Besides,  in  most  cases  where  a  person  is 
sued  as  executor  de  son  tort,  no  will  whatever  has  been  made, 
and  in  cases  where  the  defendant  pleads  the  retainer  specially, 
it  is  always  usual  for  him  to  state  the  letters  of  administration, 
or  probate,  and  make  profert  of  them.(/j) 

On  the  plea  of  judgments  against  the  testator,  or  specialty 
debts  outstanding,  and  plene  administravit  preter,  t\iQ  \i\a\ni\S 
may,  in  the  case  of  the  judgment,  either  traverse  its  existence, 
or  reply  that  it  was  not  duly  docketted  ;  in  which  case,  as  we 
have  before  seen,  it  has  onl^'  the  eff"ect  of  a  simple  contract 
debt.(2)  The  bonds  he  likewise  may  deny  ;  or  he  may  in  either 
case  reply,  that  there  are  sufficient  assets  to  satisfy  them,  and 
also  to  pay  his  debt ;  or  that  the  bonds  are  conditioned  for  the 
payment  of  a  less  sum,  which  the  creditor  is  willing  to  take,  but 
that  the  defendant  keeps  them  on  foot  by  fraud  to  cover  the  as- 
sets, and  that  he  had  sufficient  to  satisfy  the  plaintiff''s  debt  af- 
ter payment  of  what  was  due.(5') 


(o)  A  retainer  by  an  administrator,  may  be  either  specially  pleaded  or  given  in 
evidence,  under  l!ie  plea  o^ plene  administravit.  Evans  v.  JVorris^sadms.  1  Uaytu. 
Bep.  411. 

If  the  administrator  of  the  obligor  be  the  executor  of  the  obligee,  and  has  assets 
in  the  former  capacity,  it  is  payment.  Ridley  v.  Thorpe,  2  Do.  343. — A>i.  Kd. 

(^)  If  an  ex -cuior  de  son  tort,  take  out  letter  of  administration,  it  makes  legal 
all  acts  uhich  were  before  tortious.  Jiatoon  v.  Overacker,  8  Johns.  Rep.  97. — 
Am.  En. 

(9)  Tiie  Court  ■will  decree  an  off-set  against  an  administrator  of  an  insolvent  es- 
tate, (though  til  •  claim  have  not  been  exliit)itt'd  and  allowed  according  to  law)  on 
the  ground  of  fraud.  Rose  v.  Clarke,^  Roofs  Rep.  ^29. 

If  an  ai\ni'mh\intr)r  fratilulentli/  purchase  the  estate  of  the  intestate,  the  sale  is 
void  agai'St  the  creditors  and  heirs.  Shek/fn  v    Woodbridge,  2  Root's  Rep.  473. 

All  admlnist'ator  can  noi  purchase  land  of  his  intestate,  sold  by  order  of  the  Or- 
phans' Court.  Rham  v.  J\''orth,  2  Yeates^  Rep.  117.  Et  vide  Guier  v.  KeUy,2 Biim. 
Rep.  in.  Wallace  rt  al.  Ihiffieldet  al.  2  Serg.  ^  R.  Rep.  5Zl. 

A  purchase  "f  Innd  by  an  i-xecuior,  which  had  bepu  sold  by  him  agreeably  to  the 
will  of  his  testator,  is  valid,  if  it  appear  that  his  conduct  in  the  sale  was  fair  and  cor- 
rect. Fiiqnah  exr.  v.  Yoimg,  4  11.  &  JMunf.  Rep.  430. 

The  Court  will   not  grant  a  continuance  to  an  administrator,  defendant,  for  the 


EXECUTOR  OR  ADMINISTRATOR.  QQQ 

If  the  judgment  is  denied  by  the  replication,  it  of  course  Ch.  Xlil.  s.  2. 
forms  an  issue  of  md  tiel  record  for  the  Court.     If  the  bonds  are  [["elaity  dehu 
so  denied,  the  defendant  must  prove  them  by  the  subscribing  oiusiamiiug. 
witness,  and  if  the  defendant  has  pleaded  several,  and  fail  in 


the  proof  of  any  one,  the  whole  plea  is  bad.(l)  (0  ^a'k  312. 

On  the  second  kind  of  replication,  viz.  the  sufficiency  of  the 
assets,  the  evidence  will  be  the  same  as  on  the  general  plea  of 
plene  administravit :  But  then,  if  the  day  of  payment  were  pass- 
ed, and  the  bond  forfeited  at  the  testator's  death,  the  plaintiff" 
must  prove  assets  over  and  above  sufficient  to  satisfy  the  full 
amount  of  the  penalty,  even  though  the  conditions  are  set  out 
in  the  plea.(2)     In  this   case,  therefore,  it  is  always  advisable  (2)  Bank  of 
for  the  plaintiff  to  reply  per  fraudem,  and  very  little  matter  is  ^j^, i-'i"' ^' 
sufficient  to  prove  the  first  part  of  this  replication.     The  cir  -  ^'-''^-  ^*^*'^- 
cumstance  of  the  creditor  being  willing  to  take  a  less  sum,  and 
the  defendant  having  assets  to  pay  it,  is  sufficient  ;(3)  and  then,  (^l^,^''^?'',?' 
whether  there  were  more  assets  than  were  wanting  to  satisfy  311. 
the  debts  really  due,  becomes  the  true  question  in  the  cause  ;  as 
to  which  it  is  needless  to  repeat  what  has  been  before  said  as  to 
the  other  replication. 

When  the  defendant  pleads  judgments  recovered  against  him- 
self, the  plaintiff" may  make  similar  replications.  If  the  exis- 
tence of  the  judgment  be  denied,  it  will  be  by  a  replication  of 
nul  tiel  record,  and  of  course  the  trial  will  be  by  the  Court,  and 
not  by  the  jury.  But  if  the  plaintiff"  admit  the  fact  of  the  judg- 
ment, and  state  that  it  was  recovered  by  fraud,  and  that  no  debt 
■whatever  was  due,  it  will  then  be  incumbent  on  the  defendant 
to  prove  to  a  jury  the  consideration  of  the  judgment.(4)  When  (*)  T'-eihewy 
actual  fraud  is  charged  by  the  replication,  and  not  merely  the  2  Saund.  48 
circumstance  of  the  penalty  being  stated  as  the  debt,  the  plain- 
tiff does  not  reply  to  that  part  of  the  plea  which  says  that  the 
defendant  has  no  assets  ultrcuS)  (^)  ^^','!f,^ 

.  .  -  .  btra.  4IO,      - 

There  is  another  action  against  an  executor  or  administrator 
which  requires  a  separate  consideration  ;  viz.  that  suggesting  a 
devastavit.  This  action  can  only  be  maintained  after  a  judg- 
ment recovered  against  the  defendant  de  bonis  testatoris  ;  and 
as  it  charges  him  with  wasting  the  goods,  or  applying  them  to 

purpose  of  pleading  insolvency,  wlu)  lias  bcfn  grossly  negligent  in  liringing  liis  ad- 
ministration Hccovint  to  a  close.  Foster  v.  Jihbott  adm.  1  Mass.  Reji.  2,34. 

An  a<lininistrator  wjirully  m-gleciino;  to  oppoS'-  illegal  claims  against  ;ui  insolvent 
estate,  is  liable  lo  an  action  b;.  ibt   injured  party.    Parsons  v.  JMills,  2  Do.  80. 

Etvide  Douglass  v.  Satterlee  et  ul.  11  Johns.  Rep.  IC. — Am.  Ed. 


566  ACTIONS  AGAINST 

Pail  II.      his  own  use,  it  is  brought  in  the  debet  and  detinet,  and  the  judg- 
gtS'l'gaTe'.  "^^"<^  ^s  de  bonis propnis.(r) 
vasiavit.         The  plaintift'  having  before  obtained  a  judgment  for  his  debt 

Devastavit. 

(r)  A  former  judgment  against  executors,  and  nfi.fa.  returned  nullabojia,  are 
conclusive  evidence  of  a  devastavit.  Piatt  v.  Robins  ef  al.  1  Johns.  Cas.  2/6. 

An  action  of  debt  suggesting  a  <Ievastavit  will  lie  upon  a  decree  of  a  Court  of 
Chancery  in  Virginia  to  be  levied  de  bonis  testatoris  si,  et  si  non  de  bonis  propriis. 
Pennington  v.  Hayes,  2  Hayxu.  Rep.  230. 

In  an  action  against  an  executor  founded  on  a  judgment  against  them  to  be  levied 
de  bonis  testatoris  si,  et  si  rion  de  bo7iis  propriis  the  defendant  is  precluded  from 
pleading  want  of  assets. \.  Persons'"  exrs.  ibid.  301. 

If  an  executor  suft'er  judgment  by  default,  it  is  a  confession  of  assets.  Walker  v. 
Kendall,  HardiiCs  Rep.  404.  Viile  Storer  adm.  v.  Storer  et  al.  G  Jllass.  Rep.  390. 

An  executor  or  administrator  is  not  liable  to  a  judgment  beyond  the  assets  to  be 
administered,  unless  be  pleads  a  false  plea.  Sigler  et  al.  adms.  v.  Haywood,  i  Wheat. 
Rep.  675. 

Ifhe  fails  to  sustain  his  plea  of  plene  administravit,  it  is  not  necessarily  a  false 
one  ;  and  if  it  be  found  against  him,  the  verdict  ought  to  find  the  account  of  assets 
unadministered,  and  the  defendant  is  liable  for  that  sum  only.  ibid. 

In  such  case,  the  judgment  is  de  bonis  testatoris,  and  not  de  bonis  propriis.  ibid. 

After  a  return  of  7iidla  bona  in  such  a  case,  he  is  guilty  of  a  devastavit,  and  is 
liable  personally  for  the  debt.  ibid. 

In  an  action  of  devastavit,  against  an  executor,  the  plaintiff  is  entitled  to  interest 
on  former  judgment,  ibid. 

In  an  action  of  debt  on  a  judgment  against  an  executor,  suggesting  a  devastavit  of 
assets  which  accrued  after  the  judgment  rendered,  the  executor  may  plead  a  special 
plene  administravit,  and  prove  it.  Ruffin  v.  Pendleton  etal.  2  Wash.  Rep.  184. 

An  action  against  an  executor  suggesting  a  devastavit,  must  be  in  the  debet  and 
detinet,  to  entitle  the  plaintiff  to  a  judgment  de  bonis  propriis,  and  if  it  be  in  the 
detinet  only,  it  will  but  entitle  him  to  a  judgment  de  bonis  testatoris.  Spots-wood  v. 
Price,  3  H.  &  Miinf.  Rep.  123. 

When  executors  are  liable  for  a  waste  of  property  i"  The  People  v.  Pleas,  2  .Johns. 
Cas.  376.  Jlsh's  legatees  v.  Jlsh''s  executors,  1  Bay''s  Rep.  306.  The  Ordinai-y  of 
Charleston  District  v.  Corbett,  ibid.  328.  Furman  v.  Coe  et  al.  1  ^V.  Tork  Cas. 
in  Er.  96.   Smith  v.  Lock-u-ood,  10  Johm.  Rep.  366. 

The  executors  of  a  consignee  are  not  liable  for  outstanding  debts,  unless  there  be 
gross  negligence.  Jlf  Connico  v.  Ciirzen,  2  Callus  Rep.  3.58. 

An  administrator  is  chargeable  with  interest,  where  he  has  been  guilty  of  neglect 
in  putting  out  the  money  of  the  intestate,  or  has  used  it  himself.  Fox  v.  WUcocks 
etal.  1  Binn.Rcp.  194. 

When  executors  will  be  bound  to  pay  interest  ?  Granberry^s  exrs.  v.  Cranberry , 
1  Wash.  Rep.  246.  Sheppard's  exrs.  v.  Starkie  etvx.  2  Munf.  Rep.  29. 

In  Connecticut  an  administrator  is  accountable  for  rents  and  profits  where  the  es- 
tate is  insolvent.  Storer  v.  Hinckley,  1  Root's  Rep.  182. 

An  administrator  who  ships  the  effects  of  the  intestate  on  a  trading  vovage,  is  lia- 
ble for  any  loss  that  may  arise  fiora  the  transaction.  Callaghan  v.  Hall,  1  Serg.  & 
R.  Rep.  241. 

If  an  executor  compounds  and  releases  a  debt,  he  is  responsible  at  law,  for  the 
whole  amount  which  was  due.  De  Diemar  v.  Van  W(igenen,7  Johns.  Rep.  404. — 
A?i.  Eu. 


EXECUTOR  OR  ADMINlSTRtVTOU.  P^Qy 

de  bonis  iestatoris,  the  defendant  is  not  permitted  in  this  action  Ch.Xili.s.  2. 
to  say  that  he  has  duly  administered  such  goods  ;(1)  and  there-  JesTin'"!"^- 
fore  the  only  point  in  dispute  on  the  plea  of  ni/ rfefte^  is  thejudg-     vast'avit. 
mont  and  the  devastavit.  • — ■ 

The  only  evidence,  therefore,  which  is  necessary  on  the  part^'-*  '^/'^^i"?,^- 
of  the  plaintiff,  is  an  examined  copy  of  the  judgment  and  of  the  Rep.  e'ss. 
writ  oi fieri  facias  de  bonis  testaloris,  with  the  Sheriff's  return 
of  a  devastavit  or  nulla  fiona  thereon  ;(2)  for  even  should  the  de-(^)  ^|^^"""  ■^'- 
fendant  have  goods  of  the  testator,  and  not  point  them  out  towiis.  258. 
the  Sheriff  when  he  goes  to  levy  on  the  writ,  the  very  conceal- 
ment is  sufficient  evidence  that  he  has  embezzled  or  wasted 

them. (3)  (3),ErwinsT% 

But  though  this  evidence  is  sufficient  on  the  part  of  the  plain- i^^^f'^g^  ° 
tifl',  it  is  not  conclusive  against  the  defendant ;  for,  notwith- 
standing the  Sherift''s  return  of  a  devastavit,  he  may  still  shew 
that  in  point  of  fact  he  has  not  wasted  the  property  of  the  tes- 
tator, but  that  it  still  remains  liable  to  the  execution  of  the 
plaintiff;  as  if  when  the  Sheriff  came  to  levy  under  the  writ,  he 
shewed  goods  of  the  testator  which  remained  in  his  hands  undis- 
posed of,  but  the  Sheriff  refused  to  levy,  or  the  like. (4) 


(  568  ) 


CHAP.  XIV. 

OF  THE   EVIDENCE  IN  ACTIONS   BY  AND  AGAINST  HEIRS  AND 
DEVISEES. 

Part  II.          Heirs  or  devisees  may  be  plaintiflF's  upon  the  covenant  made 

Byandngainst,       ...  ,  ,      .         '  ' 

heirs  and     DJ  their  ancestor  or  devisor  ;  or  may  be   sued  upon  his  bond, 
devisees.     &c.(a)  and  they  have  frequently  occasion  to  be  parties  in  actions 
'  of  trespass,  replevin,  and  ejectment,  when  their  right  to  the  land 

itself  comes  in  question. 

In  actions  of  covenant,  debt,  trespass,  and  replevin,  the  plead- 
ings necessarily  point  out  the  fact  to  be  proved  ;  but,  in  the  ac- 
tion of  ejectment,  every  thing  necessary  to  make  ,out  the  title 
of  the  parties  must  be  given  in  evidence. 


SECTION  I. 

Of  proof  of  title  by  an  heir. 

Sect.i  .  This  action,  therefore,  requiring  the  most  evidence,  we  will 

roo    y  »<^"'-guppose  the  case  of  a  person  bringing  an  ejectment  as  heir-at- 

'^  law  to  his  first  cousin,  ex  parte  paterna,  who  died  seised  of  an 

estate  ;  the  father  of  the  claimant  having  early  in  life  oftended 

his  family,  and  being  discarded  from  it,  and  therefore  the  lessor 

of  the  plaintiff  put  to  the  most  strict  proof  of  his  pedigree. 

The  first  fact  necessary  to  be  shewn  on  S4ich  an  occasion  is, 

that  the  person  from  whom  he  claims  was  seized  of  the  estate. 

Of  which  fact  the  actual  possession  of  it,  or  receipt  of  rent  from 

(i)  Bui.  N.  p.  the  person  in  possession,  '\%  prima  facie  evidence  ;(1)*  but  if 

(a)  Real  covenants,  such  as  run  with  the  land,  only  goto  the  heir.  Hamilton  et 
al.  V.  Wilson,  4  Johns.  Rep.  72  — Am.  Ed. 

•  I  have,  in  thv»  text,  put  ihe  case  of  a  cousin  ex  parte  paterna.  If  he  claim  as 
hc'w,  ex  parte  paterna,  it  will  oe  necessary  for  him  lo  [irove,  in  addition  to  what  is 
required  in  the  other  case,  that  the  mother  o;  thi  p.-rson  from  whom  he  ciairas  was 
seised  of  the  land,  and  that,  it  dcsceiided  to  the  person  last  seised  from  her;  for, 
until  the  coDtraiy  is  shewo,  the  law  always  presumes  that  it  descended  from  some 


ACTIONS  BY  AND  AGAINST  HEIRS,  &c.  QgQ 

there  also  be  evidence  of  possession  in  another,  to  rebut  thisch.  Xiv.s.i. 

presumption,  the   party  should    go   further;  for   where  it  was  ^'■"°' '^^  ^^"■* 

proved  that  A.  was  in  possession  of  land  during  his  life  time, 

and  that  after  his  death  his  daugliter  continued  iTi  possession 

forty  years,  while  a  son  and  heir  lived  near  and  knew  the   fact, 

such  subsequent  possession,  contrary  to  the  course  of  descent, 

was  held  to  raise  a  stronger  presumption  that  the  father  had 

only  an  estate  for  life,  than  his  possession  did  of  a  fee,  and  this 

even  ui  a  writ  of  right.(l)     The  lessor  of  the  plaintiff  should  (i)Jaynet;. 

next  shew  that  his  father  and   uncle  were  descended  from  the  ^ a„„(  305^ 

same  common  ancestors,  (his  grandfather  and   grandmother,) 

which  fact  may  be  proved  by  the  register  of  their  marriage,  and 

that  of  the  baptism  of  their  children. 

Where  families  have  been  long  settled  in  the  same  place, 
and  marriages  have  been  celebrated  with  the  consent  of  rela- 
tions, this  evidence  will  be  easily  obtained ;  but,  in  the  case  of 
clandestine  marriages,  or  those  of  families  which  have  lately 
risen  from  obscurity,  it  may  be  difficult  to  prove  the  actual  ce- 
lebration of  a  marriage  at  any  distant  period  ;  therefore  the  ge- 
neral reputation  of  the  family,  that  Ji.  married  B.  or  proof  that 
they  always  passed  as  man  and  wife,  will  be  sufficient,  though 
no  register  can  be  found,  nor  any  person  is  living  who  was  pre- 
sent at  the  marriage. (2)  The  birth  of  children  may  also  be  prov-(2)  Vide  ante, 
ed  by  the  entry  of  their  names  in  tlie  family  bible,  &c.  and'-^'-'^"- 
where  families  have  occasion  to  move  from  place  to  place,  es- 
pecially in  great  cities,  it  is  very  desirable  that  some  such  pri- 
vate register  should  be  preserved,  not  only  to  be  used  as  evi- 
dence itself,  but  also  to  refer  to  that  which  is  more  authentic. 
A  father  who  will  be  at  the  trouble  of  registering  the  birth  of 
each  child  in  his  bible,  and  also  of  mentioning  the  place  at 
which  such  child  was  baptised,  may  prevent  much  litigation 
amongst  his  posterity.  The  time  of  the  birth  is  in  all  cases 
necessary  to  be  noted  by  the  parent,  for  as  to  this  the  public 
register  proves  nothing,  and  it  often  becomes  material  to  ascer- 
tain it.  (3)  (.3)  Per  Lord 

Proceeding  in  the  chain  of  evidence,  it  is  next  necessary  to^'^'^^gj'* 

remote  unknown  ancestor,  and  as  it  is  more  probable  that  it  should  come  from  (he 
father  than  from  the  mother,  does  not  suffer  any  of  her  hlood  to  inherit  till  the  other 
stock  is  entirely  extinct,  a  case  which  can  very  seldom  !ia(>pen  ;  this  is  the  hiw  ap- 
plicable to  every  case  where  a  m^n  is  in  fact  tlic  first  purchaser  of  lands,  which  he 
is  presumed  to  liold  as  a  feud  of  indefinite  antiquity  ;  but,  in  cases  where  the  land 
did  in  fact  descend  from  the  f\Uher,  thecoUateial  heirs  of  the  mother  can  nev.  i 
inherit. 

4D 


570  ACTIONS  BY  AND  AGAINST 

Part II.  shew  the  maniages  of  the  plaintiff's  father  and  mother,  his 
roo  y  leir.  [jjj.j^|^^  ^]^g  marriage  of  the  father  and  mother  of  the  person  last 
~~~~^~~'  seised,  and  that  he  is  descended  from  them  ;  as  to  the  mode  of 
proving  whicli^  nothing  need  be  added  to  what  has  been  already 
said,  except  that  as  we  advance  nearer  to  our  own  time,  more 
correct  and  authentic  evidence  is  expected  than  is  to  be  looked 
for  of  more  remote  or  early  transactions. 

'The  deaths  of  the  persons  last   seised,  and  of  the  plaintiff's 
father  are  next  to  be  proved,  and  if  there  ever  existed  any  other 
person  in  the  pedigree  who  stood  before  the  lessor  of  the  plain- 
tiff, he  should  be  prepared  with  evidence  to  shew  the  death  of 
such  person,  for,  by  the  general  rules  of  law,  he  who  asserts  the 
death  of  another  who  v/as  once  living,  must  prove  the  death, 
(i)Thio,q.      whether  the  affirmative  issue  be  that  he  is  dead  or  living.(l)  To 
Wa7ron^2       pi'ove  the  fact  of  death  we  generally  have  the  assistance  of  pa- 
Roii.Rep.      rish  registers  of  burials;  but  v/here  families  have  been  scattered 
*.  Ho(lges^"2    abroad,  and  are  not  of  any  considerable  station  in  life,  these 
East,  312.       are  not  always  to  be  found,  and   sometimes  do  not  even  exist. 
The  reputation,  therefore,  of  the  family  that  their  relation  went 
abroad   and   died    there,  or  inscriptions    on  tomb-stones,  &c. 

(2)  Ante,  22.  which  are  a  species  of  reputation,  is  sufficient  :(2)  and  if  he  has 
,x^      ,       not  been  heard  of  for  seven  years,(3)  and  was  never  known  to  have 

(3)  Doe  dem. .  -j^.i---  .  /..  •, 

Banning  T).     been  married, (4)  this  is  in  every  case  prima  jacie  evidence  to 

f'^'^^'q'?^     presume  his  death   without  issue,  until  the  contrary  is  prov- 

ed.*(6)     In  cases  of  shorter  absence  than  seven  years,  the  pre- 

(4)  Roe  V.        

Haslantl,  1 

Black.  404.         i^Ij-^  Ignorance  in  a  family  of  the  existence  of  one  of  the  children  who  had  gone 
6  Fast   80         abroad  at  the  age  of"  twenty-two  years  unmarried,  and  had  not  been  heard  of  for  up- 
'  wards  of  forty-years,  is  sufficient  to  warnint  a  presumption  of  his  death  wiiliout  is- 

sue. Jif'Comb  V.  Ogilvie,  5  Johns.  Ch.  Rep.  263. 

An  absence  of  forty  oi'  fifty  years,  and  not  being  heard  of,  is  suflScient  evidence 
of  death  to  non-suit  a  plaintiff,  ^inon.  IHayio.  Rep.  134. 

The  general  reputalion  and  tradition  in  a  family  of  the  death  of  one  of  its  mera- 
bers,  am!  of  his  having  died  seised  of  real  estate,  is  evidence  of  those  facts,  even  in 
an  action  of  ejectment  for  such  estate,  by  another  of  the  same  family  claiming  under 
the  deceased.  Pancoast's  les.  v.  Mdisori,  1  Uar.  SJ  Johis.  Rep.  350,  Vide  ante, 
p.  24,  note  {ii). — Am.  En. 

•  I  have  here  mentioned  the  regular  chafin  of  evidence  which  is  required  to  make 
out  a  title;  but  wliere  a  person  has  always  been  the  acknowledged  son,  brother, 
nephew,  or  cousin  of  the  peison  last  seised,  much  less  evidence  will  sufflce;  it  was, 
indeed,  in  one  case,  contended,  that  general  evidence  of  a  person  being  reputed  to 
be  heir  in  the  family  of  tlie  deceased,  thouL^-r.  his  degree  of  relationship  was  never 
mentioned,  nor  any  evidenc"  given  to  shew  a  relaiionship,  was  prima  facie  evidence 
of  title  in  him.  'I'he  Judges  of  the  Common  Pleas  agreed  that  this  was  not  sufH- 
cieiit  to  go  the  jury  ;  but  they  were  divided  on  the  question,  v/hetlier,  if  any  parti- 
cular degree  of  distunt  relationship  had  been  mentioned,  it  would  have  been  neces- 
sary to  have  shewn  a  pedigree,  ptoving  the  deceased  and  the  claimant  descended 
from  some  common  ancestor,  or  at  least,  from  two  brothers  or  sisters,  w  hich  is  called 
an  immediate  descent.    Vide  Roe  dem,  Thome  v.  Lord,  2  Black.  1099. 


HEIRS  AND  DEVISEES.  ^y^ 

sumption  is  that  the  party  is  still  living,  unless  there  is  somcch.xiv.s.  i. 
evidence  to  rebut  it.  But  this  presumption  may  be  rebutted  by  P*"""* ''^  '*^"'- 
a  contrary  presumption  without  direct  proof,  as  where  a  hus- 
band  left  his  wife  and  went  abroad,  and  the  wife  in  little  more 
than  twelve  months  afterwards  married  again  and  had  children, 
the  presumption  of  law  being  that  no  one  would  commit  a  crime, 
it  was  held  incumbent  on  the  party  who  objected  to  the  legiti- 
macy of  those  children  to  prove  the  fact  of  the  husband  being 
alive  at  the  time  of  the  second  marriage/ 1)  (i)  ^^^  ^- 

I  have  hitherto  considered  only  those  cases  where  a  child  is  Bam.  &  Aid. 
proved  to  be  born  in  wedlock  in  the  life  time  of  its  parents;  but^SC 
the  title  of  an  heir  at  law  may  involve  more  difiScult  considera- 
tions, viz.  whether  a  child  so  born  was  in  fact  the  issue  of  its 
supposed  father. 

Where  a  child  is  born  of  a  woman  legally  married,  during  the 
lifetime  of  her  husband,  or  within  its  usual  time  of  gestation  af- 
ter his  death,  the  presumption  is,  that  such  child  is  the  issue  of 
the  husband ;  and,  so  strong  was  this  presumption  by  the  old 
rules  of  law,  that  if  he  were  within  the  kingdom*  no  evidence 
was  admitted  to  prove  the  child  a  bastard,  except  the  total  ina- 
bility of  the  husband  to  beget  children,  as  being  under  the  age 
of  puberty  or  having  some  other  equally  palpable  defect.(2)(c)     (2)  Co.  Lit. 

It  is  now,  however,  holden,  that  this  presumption  may  be  re-      ' 
butted  by  proof  of  non  access,(3)t  as  well  as  of  total  inability  of  (3)  Pendrei 

"^    ^                                                                                                               •'v.  Pendrei,  2 
Stra.925. 

•  The  legal  phrase,  infra  qiiatuor  maria,  seems  to  have  been  always  taken  with 
this  limitation.  Sir  Edviard  Coke,  in  his  commentary  on  Littleton,  above  cited, 
says,  "  if  the  husband  be  within  the  four  seas,  that  is,  •ivitliin  the  jurisdiction  of  the 
King  of  E.71  gland  ;"  and  in  Jenk.  Cent.  10,  pi.  18,  it  is  said,  "  that  if  the  husband 
be  in  Ireland  tor  a  year,  and  the  wife  in  England,  during  that  time,  has  issue,  it  is  a 
'lastard  ;  but  it  seems  otherwise  now  for  Scotland,  both  being  under  one  King,  and 
;nake  but  one  continent  of  land." 

(c)  A  child  born  during  marriage,  may  be  proved  to  be  a  bastard — 1st.  By  evi- 
dence of  the  husband's  inability.  2dly.  By  proof  of  non-access  to  his  wife.  3diy.  By 
proof  that  the  child  was  born  out  of  due  time ;  or  4tlily.  That  it  was  born  during 
her  open  co-habitation  with  another  man,  and  was  considered  illegtimate  by  the  fa- 
mily.  Commonivealth  v.  Strieker,  I  Broivne\i  Rep.  App.  xlvii. — Am.  Ed. 

t  In  the  marginal  abridgmfent  of  the  case  of  Goodwright  dem.  Thompson  v.  Saul, 
3  Term.  Rep.  356,  it  is  said,  "  The  child  of  a  married  woman  may  be  proved  lo  be 
a  bastard  by  other  evidence  than  that  of  the  husband's  non  access."  But  it  must 
not  be  understood  from  this,  that  if  the  husband  has  access  within  such  a  period  of 
time  as  would  probably  produce  a  child,  it  is  competent  to  shew  that  aiiotiier  per- 
son is  the  father.  In  that  case  it  plainly  appeared  that  another  person  lived  with 
the  wife  ;  that  she  took  his  name  ;  that  the  husband  left  her,  and  that  the  child  bore 
the  name  of  the  person  with  whom  she  lived ;  but  because  it  was  not  clearly  ascer- 
tained where  the  husbaud  was  all  the  time,  it  was  doubted  whether  non-access  could 


572 


ACTIONS  BY  AND  AGAINST 


Part  II.  procreation  by  the  husband  ;(1)  but  still  very  strong  evidence  is 
00  y  ^"'required  of  these  facts;  if  the  husband  ever  had  access  to  his 
wife,   within   such   a  distance  of  time  before   the  birth  of  the 


Hdhiiihn, 2  child  as  to  render  it  possible  for  the  child  to  be  his,(2)  the  law 
Sira.  940.  ^jjj  consider  it  to  be  sb ;  and  where  his  habit  of  body  was 
(i)'Rexv.  only  such  as  to  make  it  improbable  that  he  should  beget  a  child, 
Eas^'i93  ^"^  "''^  ^^  render  such  an  event  wholly  impossible,  verdicts 
have  generally  been  in  favour  of  legitimacy. 

Where  the  parties  are  divorced,  a  mensa  et  thoro,  the  pre- 
sumption is,  that  they  did  live  apart,  and  the  onus  of  proving 
access  lies  on  the  party  who  asserts  the  legitimacy  of  children 
born  during  such  separation  ;(3)  but,  in  the  case  of  a  voluntary 
(3)  Salk.  123.  s^P^''^^'^'^  by  ^s''^^'^^'^^'  ^^^  law  presumes  access,  unless  the 
contrary  be  proved. (4) 

As  to  posthumous  children.  Lord  Coke(5)  has  laid  it  down 
(5)Vi>ieCo.  tha.t  forty  iveeks  h  the  latest  time  which  the  law  allows  after  the 
'  '      death  of  the  husband,  and  that  all  born  after  that  time  are  to  be 
deemed  bastards.     But  as  gestation  may  be  accelerated   or   re- 
tarded by  various  causes.  Mr.  Hargrave  has,  I  think,  satisfac- 
torily proved,  in  two  learned  and  laborious  notes  on  that  pas- 
sage   of   Lord    Coke,  that   though    the    presumption    may  be 
against  the  legitimacy  of  children  born  at  a  later  period,  yet 
that  there  is  no  positive  rule  of  law  which  determines  that  they 
are  not  children  of  the  deceased  husband  ;  that  in  every  case 
it  must  be  considered  as  a  question  of/act  to  be  determined  by 
evidence ;   and  accordingly   we  find  that  where  a  woman  had 
been  delivered  after  the  usual  time,  physicians  were  examined 
as  to  the  cause,  and  on  their  evidence  the  issue  was  found  to  be 
legitimate. (6) 
(6)  Aisor.         I  have  before(7)  had  occasion  to  mention  how  far  tlie  parents 
Bowtreii,       ^yQ  admissible   witnesses,  or   where   their  declarations  may  be 

Cio.Jac.54l.     .  .  .  T     1     11        1         1  1 

given  in  evidence  on  questions  ot  this  nature.     1  shall  only  add, 
('^)  ■^'^*^» '^*^' that  the  party  who  disputes  the   legitimacy  may  give  general 


be  presumed.  The  Judge,  at  the  trial,  thought  this  was  not  sufficient  to  rebut  the 
general  presumption  ot"  access  ;  but  he  ami  the  rest  of  the  Court  were  afterwards  of 
a  different  opinion  :  and  iii  the  case  of  the  Batibury  Peerage, '2  Selwt/n's  J\1si  Prius, 
681,  it  was  held,  that  though  the  husband  and  wife  had  the  opportunity  of  access,  the 
presumption  of  legitimacy  aiising  from  that  fact  might  be  rebutted  by  circumstances 
raising  a  contrary  presumption.  In  a  late  case,  where  the  husband  was  proved  to 
have  gone  beyond  seas  two  years  before  the  birth  of  a  child  borne  by  his  wife,  (who 
remained  at  home,)  and  to  have  been  abroad  till  within  four  months  of  the  birth, 
the  Court  held  the  conclusion  that  such  child  was  a  bastard  to  be  iiTesistibie.  Hex 
V.  Inhabts.  of  Maidstone,  12  East,  550. 


HEIRS  AND  DEVISEES.  Qi^S 

evidence  that  the  mother  was  a  woman  of  ill  fame,  but  he  can-  ch.xiv.  s.  i. 
not,  while  she  is  living,  prove  her  declarations,  unless  for  theP'""'"''y '**^"" 
purpose  of  contradicting;  her  after  she  had  been  examined  as  a 

•/  /,v  (l)Pen(lrel 

WltneSS.(l)  7..  Petidrel,  2 

Stfa.  025. 


SECTION  II. 

Of  the  proof  of  title  by  the  devisee. 
If  the  action  be  brought  by  a  devisee,  he  has  only  to  prove  the     ^'-'^^..r 

a  J  J  \  Proof  by 

seisin  of  his  testator,  and  the  due  execution  of  the  will ;  but,  as      devisee. 

a  particular  form  of  execution  is  pointed  out  by  the  Statute  of 

Frauds,  and  many  decisions  have  taken  place  upon  that  Sta- 
tute which  cannot  be  very  well  reconciled  with  each  other,  it 
may  be  necessary  to  state  thera  at  some  length. (rf) 

By  that  Statute,  viz.  29  Car.  2,  c.  3,  s.  5,  it  is  enacted,  that, 
"  all  devises  and  bequests  of  any  lands  or  tenements,  devisa- 
ble either  by  force  of  the  Statute  or  wills,  of  by  that  Statute,  or 
by  force  of  the  custom  of  Kent,  or  the  custom  of  any  borough. 


(d)  For  ihc  execution  of  wills,  vide  in  JMassachusetts.  Chase  et  al.  v.  Lincoln 
,exr.  3  Jl'Iass.  Jiep.  236.  Sears  \,  Dilliiigliam  et  al.  exrs,  12  JDo.  358.  Amoryy. 
Felloiues,  5  Z)o  219. 

In  Coimecticnt .  Witter  et  iix.  v.  JMott  et  al.  2  Con.  Rep.  67.  James  v.  JMarvin 
et  al.  3  Do.  576. 

In  jyTev!  Jersey .  Den  v.  Va?icleve,  2  South.  Tiep.  589. 

In  Peimsylvania.  Bight  v.  Wilson,  I  Ball.  Rep.  94.  Letuis  v.  Maris,  ibid.  2f  <?, 
Dessebats  v.  jBerquier,  1  Bifm  Rep.  336.  Arndt  v.  ..irndt,  1  Serg.  &  R.  Rep.  256. 
Phimisteads  .appeal,  iUo.  545.  I^es.  of  Stein  et  al.  v.  JVorth,  3  Yea'.es''  Rep.  324, 

In  JMarylajid.  Cltiyland^s  les.  v.  Pearce,  1  //.  &  Jil'/Ien.  Rep.  29.  Crow  v.  Scott., 
ibid.  182.  Les.  of  Shaffer  et  al.  v.  Corbett,  3  Do.  513.  Russellet  al.  v.  Moor  Fulls, 
ibid.  457.    Collins  v.  Elliott,  1  //.  &  Johns.  Rep.  1 . 

In  Virginia.  Beverly  v.  Fogg,  1  CalPs  Rep.  4S4.  Cogbill  v.  Cogbill,  2  //.  c5 
Mmif.  Rep.  467.  Biirrellv.  Corbin,  1  Randolph's  Rep.  131. 

Ill  J\orth  Carolina.  .Inon.  2  Haytv.  Rep.  3.  Hampton  v.  Garland,  ibid.  147. 
Ward  V.  Wickers,  ibid.  164.  Elbeck  v.  Cranberry,  ibid.  232.  Reels.  Reel,  \ 
JIa-wk's  Rep.  248.  Harrison  v.  Burgess,  ibid.  3S4.  Trustees  v.  Blount,  1  Tayl. 
Term.  Rep.  13. 

In  South  Carolina.  Pcarman  v.  Wightman,  1  Rep.  Const.  Ct.  S.  Car.  345. 
Haywood  v.  Hazzard,  1  Bay''s  Rep.  335.  Snelgrove  v.  Snelgrove,  4  Desaus.  Rep. 
305.  White  v.  Holmes,  I  M- Cord's  Rep.  430.  Hopkins  v.  De  Graffenreid,  2  Baif;^ 
Rep.  187.  /axe  v.  Mburtson,  ibid.  484. 

In  Kentucky.  Ray  \.  Walton,  2  JJ/orsA.  i?!"/).  73.  FJmendorfv.  Carmichael, 
3  Li«e/r«  Rep.  479.— Am.  Ed. 


574)  ACTIONS  BY  AND  AGAINST 

Part  II.     or  any  other  particular  custom,  shall  be  in  writing,  and  signed 
Proofby     |jy  |jjg  party  devising  the  same,  or  by  some  other  person  in  his 

devisee.  ^  r       j  o  '  j  r 

presence,  or  by  his  express  direction  ;  and  shall  be  attested  and 

subscribed  in  presence  of  the  devisor,  by  three  or  four  credible 
witnesses,  or  else  shall  be  utterly  void  and  of  none  effect." 

What  wiihin       1.  Jn  the  first  place  it  is  to  be  observed,  that  devises  of  copy- 

tlie  Stslulc* 

holdyil)  or  of  mere  chattel  interests,(2)  (unless  where  a  term  is 
(i)Roeilem.  assigned  to  attend  the  inheritance,)  are  not  within  this  Statute; 
Hey  hoe,  2  but  any  estate(3)  for  years,  or  otherwise  carved  out  of  a  free- 
Black.  1114.  hold,  are  subject  to  the  provisions  of  it. 

Signing  by  2.  In  cases  within  the  Statute,  the  first  solemnity  required  by 

the  testator.    -^^  jg  signing,  and  several  cases  have  come  before  the  Court  on 
(2)G''^-'^n-  the  question  as  to  what  shall  be  deemed  to  be  such. 

Rep.  169,  Sec.       ,    ,        ,  •       i      i         -i-   i  -,,1. 

It  has  been  determined,  that  if  the  testator  write  his  will  him- 
ihurch'l'^'  ^^^^'  beginning  "  I,  ^.  B."  this  is  sufficient,  though  he  does  not 
"Whitchurch,  sign  his  name  at  the  bottom. (4)  But  where  it  appears  that  he 
1  Sua  621. '  JJ^tended  to  sign  his  name  at  the  bottom  of  each  sheet  of  a  will, 
consisting  of  more  than  one,  and  through  weakness  or  incapa- 
i.  StatiJe V "3  ci^y  ^^^s  prevented  from  signing  his  name  to  some  of  the  sheets, 
Lev.  1.  3       the  signature  to  the  others  will  not,  it  has  been  said,  ffive  effect 

Mod    219.  ■  .        .  ° 

y.  C.  to  an  instrument  which  it  appears  he  did  not  consider  as  fully 

completed.  This  was,  at  least,  the  opinion  of  the  Judges  of 
fa^Rit^ht  ^^^^  Court  of  King's  Bench  in  one  case,  but  the  cause  being  de- 
dem.  Cater  •TJ.cided  against  the  will  on  other  grounds,  no  judgment  was  given 
Price,  Do.gl.  ^^  ^j^jg  point.  (5)(e) 

The  effect  of  sealing  alone  does  not  seem  to  be  yet  decided. 
1^  SufnTeT,"^  It  was  in  one  case(6)  said  that  this  was  signing,  within  the 
ubi  supra.       meaning  of  the  Act  of  Parliament,  and  Lord  Raymond  is  re- 


(e)  To  constitute  a  valid  will  of  lands  in  Pennsylvania,  it  is  not  necessary — 1st. 
That  it  should  be  sealed.  2d.  Nor  that  al!  the  sub  -cribing  witnesses  should  prove 
its  execution.  3d.  Nor  that  the  proof  of  the  will  should  be  made  by  those  who  sub- 
scribed as  witnesses.  4th.  Xor  that  the  will  should  be  subscribed  by  the  witnesses. 
Eight  V.  Wikon,  1  Ball.  Rep.  94. 

In  Virginia,  where  a  will  devising  real  estate  was  written  and  signed  by  another, 
and  (here  were  two  subscribing  witnesses,  one  of  w  horn  saw  the  signature,  and  heard 
the  testator  acknowledge  that  it  was  done  by  his  authority,  and  tlie  other  not  testi- 
fying whether  the  paper  was  signed  or  not  at  the  time  of  his  attestation,  the  testator 
merely  declaring,  *'  It  is  my  will,"  it  w'as  held  the  paper  was  not  sufBciently  proved 
under  the  Statute.  JBiirrellv.  Corbin,\  Randolph's  Rep.  \S\. 

\n  JVorth  Carolina,  the  signing  of  a  testator  maybe  proved  by  his  having  ac- 
knowledged it,  though  the  signature  was  not  before  him,  and  the  paper  lay  at  a  dis- 
tance. Eelbeck  v.  Granberry,  2  ffuyw.  Rep.  232. 

In  South  Carolina,  where  a  will  is  written  on  several  sheets  of  paper,  it  never 
has  been  determined  that  the  testator  must  sign  them  all.  Pearson  v,  Wightman, 
1  Rep.  Const.  C(.  S.  Car.  345.— Am.  Ed, 


HEIRS  AND  DEVISEES.  5^5 

ported  so  to  have  ruled.(l)  But  in  a  subsequent  case,(2)  Lordch.Xiv.s.2, 
Hardwicke,  though  he  inclined  to  think  this  would  be  suffi-  ^'^"^3"^^^^ ''"^ 

cient,  said  it  was  a  point  proper  to  be  determined  at  law ;  and, ^ 

in  a  still  later  case,(3)  the  Court  of  Common  Pleas  declared  an  (i)  wamford 
opinion  to  the  contrary,  but  no  formal  judgment  was  given  o^g'stra^'ye^''' 
the  point. 

The  will  is  directed  to  be  attested  by  at  least  three  witnes- 1^^)^^'^7^^ 
ses;  but  considerable  doubt  seems  to  have  been  entertained  how  2  Atk.  176. 
far  it  is  necessary  for  the  testator  to  publish  the  will  to  them  at  pubUgatjoa 
the  time  of  the  execution;   Lord  Hardwicke,  in  Boss  v.  Hw-oiv/iU. 
cr,(4)  considered  it  to  be  necessary,  and  mentioned  the  case  of  (3)  vide 
the  will  of  Mr.  JVindham  of  Clearwell,  where  his  Lordship  said  ^™'"»  y-  ... 

£lv£ios  1  Vv  ils 

there  was  no  doubt  of  the  testator  having  executed  the  will  in  313. 

the  presence  of  three  witnesses,  or,  of  their  having  attested  it  j^^^^  Smiih'' 

in  his  presence;  which,  he   observed,  shewed   thatpublicationiVes.jun.il. 

was,  in  the  eye  of  the  law,  an  essential  part  of  the  execution  of  .^x  3  ^^j^ 

a  will,  and  not  a  mere  matter  of  form.  But  in  subsequent  cases  i5G. 

where  the  point  has  arisen,  this  seems  to  have  been  considered 

as  proved  by  the  very  fact  of  attestation  by  the  witnesses  ;  for, 

in  the  first  place,  it  has  been  holden  that  a  delivery  as  a  deed 

is  a  sufficient  publication  ;(5)  and  even  where  the  testator  re-  (5)  s  Vin, 

presented  it  to  the  witnesses  to  be  a  deed,  and  the  attestation  jg'"    "  '^  ' 

was  "  sealed  and  delivered,"('6)  the  will  was  holden  to  be  duly 

published  ;  and  in  another  case,(7)  tried  before  Mr.  Justice  De-^,  j^ckson,  ^ 

NisoN,  at  Lincoln,  where  the  testator  told  the  witness  "  to  /aA:e^ Bum's  Eecl, 

.  ,     ,  ,  Law,  11-1. 

notice,    and  then  signed  the  paper  and  shewed  them  where  to 
write  their  names  as  witnesses,  without  saying  what  the  instru-(')  Wallis 
ment  was;  this  was  alsoholden  by  the  Judge  to  be  a  sufficient  exe-  bid.  117,' 
cution ;  and  a  similar  decision  was  made  by  Lord  Chief  Justice 
Trevor,  in  the  case  of  Peate  v.  Ougly,  which  I  shall  presently 
have  occasion  to  cite  more  at  large  for  another  purpose.(y ) 

But  the  doubt  in  most  of  the  cases  which  have  arisen  on  this  Attestation  by 
clause  of  the  Act  of  Parliament,  has  been,  what  shall  be  a  suf- 
ficient attestation  by  the  witnesses.  (8)  Harrison 

First,  it  has  been  determined,  that  though  the  witnesses  musts'ves.  jnn. ' 
all  sign  their  names,  or,  in  case  they  are  illiterate,  make  their  l^^.-  -^J^'^/^?- 

,  ...  r     \  Gn.x,Id.  50*, 

marks,(8)  as  witnesses  m  the  presence  of  the  testator,  yet  that 
they  not  do  so  in  the  presence  of  each  other  ;(9)  and,  therefore,^.  Ciodron, 
where  the  testator,  having  executed  his  will  in  the  presence  of  two  ?'}^''  -  ^"■ 
persons,  who  subscribed  their  names   as  witnesses  in  his  pre- Grayson r, 

Atkinson, 

— — — — 'iVez.454. 

(/)  The  execution  of  a  codicil  is  an  implied    revocation  of  a  will.    -OMn/Gj&  e^  j^.^^^g  i^iie.A 
al.  V.  Dunhip  et  al.  4  Desauss.  Hep.  305. — Am.  Bu.  2  Atk.  177. 


576  ACTIONS  BY  AND  AGAlKST 

Part  11.     sence,  at  a  distant  time  afterwards  called  in  a  third  person,  and^ 
^wknessTs^^^'^^^'"S  ^^™  ^is  name,  told  him  it  was  his  hand-writing,  and  de- 

sired  him  to  witness  it,  which  he  did  also  in  the  presence  of  the 

testator,  it  was  holdenthat  this  was  a  good  execution  in  the  pre- 
sence of  three,  and  was  properly  attested  by  them.(g') 

It  follows  from  this  decision  that  all  the  witnesses  need  not 
see  the  testator  write  his  name  ;  and  accordingly  it  was  deter- 
mined by  Sir  Joseph  Jekyll,  that  where  three  witnesses  sub- 
scribed their  names  as  witnesses  in  the  presence  of  a  testatrix, 
but  one  of  them  said  that  he  did  not  see  her  sign  her  name,  but 
that  she  owned  at  the  time  that  the  signature  was  her  hand- 
writing, that  this  attestation  was  sufBcient.(l)  But  where  the 
(1)  Stone-      testator  signed  in  the  presence  of  two  witnesses,  and  afterwards, 

house  V.  Eve- .  °  '^ 

lyn,  3  P.  in  the  presence  of  the  third,  said,  this  is  my  will,  but  did  not 
Will.  2o3.  pyj.  i^ig  gg^j^  or  acknowledge  the  hand-writing.  Lord  Hardwicke 
(1)  Gi vie  V.  inclined  to  think  this  was  not  a  perfect  execution,  but  gave  no 
Gjyie,  2  Aik.  judgment,  as  the  cause  stood  over  on  another  part  of  the  case.(!2) 
In  the  case  of  Peate  v.  Ougly,  before  alluded  to,  the  testator 

P«'='*e  had  written  the  will   himself,  and  signed   his  name,  and  put  a 

71  Oun-ly  '  »  '  r 

Comyus,  197.  Seal  at  the  bottom,  and  had   added  also,  in  his  own  writing, 

"  signed,  sealed,  and  published,  as  my  last  will  and  testament, 

in  the  presence  of ,"  two  of  the  witnesses  were  dead,  and 

the  thiid  swore  that,  about  twenty-eight  years  before,  being  then 
servant  to  the  testator,  he  and  the  other  witnesses  were  called 
up  in  the  night,  and  ordered  to  the  testator's  chamber,  who 
produced  a  paper  folded  up,  and  desired  him  and  the  others  to 
set  their  hands  to  it  as  witnesses,  which  they  did  in  his  pre- 
sence ;  but  the  witness  did  not  see  any  of  the  writing,  nor  did 
the  testator  say  it  was  his  will,  or  what  it  was ;  but  he  believed 
this  to  be  the  paper,  because  he  never  witnessed  any  other  pa- 
per for  the  testator ;  and  added  that,  though  the  testator  did  not 
set  his  name  or  seal  to  the  will  in  their  presence,  yet  he  had 
often  seen  him  write,  and  believed  the  whole  will  and  codicil  to 
be  of  his  hand-writing  ;  Lord  Chief  Justice  Trevor  thought  the 
evidence  sufficient  for  the  jury  to  find  the  will  well  executed, 
and  they  found  accordingly.  It  must  be  noticed  in  this  place, 
s  P.  Will.  that  it  is  said  by  the  reporter  of  iStonehouse  v.  Evelyn,  that,  on 
'^5j-  Ilia  mentioning  that  case  to  Mr.  Justice  Fortescue  Aland,  he 

said,  that  it  was  sufficient  if  one  of  the  three  witnesses  swore 
that  the  testator  acknowledged  the  signing  to  be  his  own  hand ; 

[g)  Russell  et  al.  v.  Moor  Falls,  3  II.  &  M'Hen.  Rep.  45",  Harrison  y.  Buv 
gess,  1  Ilavk's  Rep.  384.— Am.  Ed. 


HEIRS  AND  DEVISEES.  gyy 

"  from  whence,"  Mr.  Poivell  observe'^,  "  it  seems  a  necessary  in-ch.XlV.  s.2. 
ference,  that  such  an  acknowledgment  at  least  is  necessc.rv  to  ^'"^*''"'"" '^X 

support  the  attestation  ; '  but  perhaps  it  may  be  questionable  

whether  this  observation  is  applicable  to  all  cases.     Where  a  poweii'sLaw 
will  is  written  by  a  third  person,  and  signed  by  the  testator  at  Dev.  80. 
the  bottom,  it  may  be  said  that  without  such  acknowledgment 
there  is  no  other  evidence  of  the  will  having  been  signed  by  liim, 
than  that  arising  from  similitude  of  hands,  and  therefore  it  does 
not  appear  but  that  the  signature  might  be  made  afterwards  by 
the  testator  when  alone,  but  where  a  will  is  written  wholly  by  Vide  Le- 
the testator,  as  was  the  case  in  Peate  v.  Oughy,  and  the  testa-  su,iley,'ante, 
tor's  name  is  in  the  body  of  the  will,  or  as  in  that  case  in  such^T'^i- 
a  place  as  evidently  shews  that  it  must  have  been  written  at  the 
time  of  attestation,  it  should   seem  that  no  such  acknowledg- 
ment is  essential  to   its  validity,  because   the   bare  inspection 
proves  that  the  whole  must  have  been  written  before  it  was  at- 
tested by  any  of  the  witnesses. 

Though  the  witnesses  need  not,  according  to  the  foregoing 
cases,  all  attest  at  the  same  time,  or  in  the  presence  of  each 
other,  yet  it  has  been  holden,  that  unless  they  all  attest  the 
same  instrument,  and  that  whereby  the  lands  are  intended  to 
pass,  the  requisites  of  the  act  are  not  complied  with,  although 
the  testator  by  a  subsequent  paper  evidently  meant  to  confirm 
the  first.(A) 

And  therefore,  where  a  testator  devised  his  lands  by  a  will 
made  in  the  presence  of,  and  attested  by  two  witnesses  only, 
and  about  a  year  afterwards  made  a  codicil  whereby  he  revoked 
a  legacy  given  by  his  will,  and  declared  that  the  will  should  be 
ratified  and  confirmed  in  all  things,  except  as  altered  by  that 
writing,  and  that  this  codicil  should  be  taken  as  part  of  his  will; 
and  executed  his  codicil  in  the  presence  of  one  of  the  former 
witnesses  and  another  person,  neither  the  other  witnesses  nor 
the  first  will  being  present,  it  was  holden  that  this  attestation 

(/j)To  constitute  a  vali<l  will  For  the  disposition  of  real  estate,  it  is  necessary  that  it 
should  bf  reduced  to  writing,  in  the  lil'i-iinne  of  the  testator,  and  proved  by  two  wit- 
nesses; bui  signing  by  the  testator,  formal  publication  and  attestation  by  subscnb- 
ing  witnesses,  an  not  required.  Rosseter  v.  Simmons  et  ux.  G  Serg.  &  R.  Rep, 
452.     El  vide  Hock  v.  Hock,  ihiU.  47. 

Where  the  execution  of  a  will  is  so  proved,  one  witness  is  enough  to  rebut  the  im- 
putation, that  a  paper  of  the  contents  of  which  he  w.ts  ignorant,  was  imposed  on 
bim.  So  one  witness  is  enough  to  set  aside  a  will  on  account  of  fraud.  Lewis  v. 
Lewis,  6  Seig.  &  R.  Rep.  489. 

A  raemoriiiiduin  wriUen  by  the  testator  in  his  ownhand  -writing  (though  his  name 
appeared  in  no  part  of  it)  was  established  to  be  a  good  codicil.     Cogbill  V.  Cogbill, 
iH.&  Mtinf.  Rep.  4G7.— Am.  Ed. 
4   E 


578  ACTIONS  BY  AND  AGAINST 

Part.  II.      uas  not  sufficient  ;(1)  and  in  another  case, (2)  where  a  man  hav 
witnesses.'*  ing  made  his  will,  written  with  his  own  hand,  and  signed  and 

sealed,  but  not  witnessed,  afterwards  made  a  codicil  attested  by 

(i)Leat).       four  witnesses,  which  was  called  a  codicil  to  be  annexed  to  his 
L^bb,  Caiih.    |^g^  ^m^  j^^^.  ^j^^  ^^jjj  ^y^g  j^^^  produced  at  the  time  of  executing 

the  codicil ;  it  was  also  holden  that  this  will  was  void  for  want 
cintrT""^'  of  a  due  attestation. 

V.  Barnes,  In  the  last  case  the  Court  seems  to  have  laid  some  stress  on 

"''^'     ■  '    the  circumstance  of  the  first  will  not  being  produced  at  the  time 
the  codicil  was  executed  :   but  in  one  which  afterwards  came 
(3)  Pern-        before  the  Court, (3)  the  mere  production  of  the  will  was  holden 
Lord  Lans-    ^^ot  to  be  sufficient  to  give  it  validity.    The  testator  having,  by  a 
clown,  cited     ^y[\\  ^ot  witnessed,  devised  lands,  afterwards  made  a  codicil,  and 
*  taking  the  codicil  in  one  hand,  and  the  will  in  the  other,  said,  "This 
is  my  will  whereby  I  have  settled  my  estate,  and  I  publish  this  co- 
dicil as  part  thereof,"  and  then  signed  the  codicil  (which  lay  upon 
the  table  with  the  will)  in  the  presence  of  seven  witnesses,  who 
subscribed  it  in  his  presence.    The  testator  then  put  the  will  and 
codicil  together  into  a  sheet  of  paper,  and  sealed  them  up  in  the 
presence  of  the  same  witnesses,  but  the  will  was  not  unfolded  in 
their  presence,  nor  did  any  of  them  write  their  names  upon  it 
or  on  the   paper  wherein  it  was  enclosed,  and  notwithstanding 
the  fact  of  the  will  being  so  produced,  and  the  codicil  itself  re- 
citing the  will  and  the  words  "  I,  by  this  codicil,  which  I    ap- 
point to  be  taken  as  part  of  my  will,"  being  used  in  it,  P,\r- 
KER,  Ch.  Justice,  and  the  Court,  on  a  trial  at  bar,  held  the  will 
to  be  void. 

In  the  above  cases  the  Court  evidently  considered  the  codi- 
cil as  a  separate  instrument  from  the  will,  and,  upon  that  ground, 
determined  that  there  was  no  due  attestation  of  the  former;  but  if 
several  writings  be  made  by  atestatoron  the  same  paper,  and  it 
plainly  appear  that  his  intention  w\is  that  all  should  form  but  one 
Carletondem.  will,  and  not  a  will  and  codicil;  in  such  case  the  execution  of  the 
Griffin  v.       last  will  be  considered  as  the  execution  of  the  whole  ;  and  there- 

Gnthn,  c  i  t  i  /•  mi     > 

1  Burr.  549.  tore,  where  the  testator  wrote,  upon  a  sheet  of  paper,  a  will,  dat- 
ed 2d  May,  1752,  whereby  he  disposed  of  lands,  and  signed  it, 
but  which  was  not  sealed  or  attested ;  and  afterwards  wrote,  on 
the  same  sheet  of  paper,  a  memorandum,  dated  5th  Jan.  1754, 
wherein  after  disposing  of  some  personalty,  he  added,  "  this  is 
not  to  disannul  any  of  the  former  part  made  by  me  the  2d  of 
May,  1752,  except  that  my  wife  shall  not  be  liable  to  pay  my 
son  John,"  &c.  and  subscribed  the  latter  memorandum,  and  pub- 
lished the  whole  in  the  presence  of  three  witnesses;  the  Court 


HEIRS  AND  DEVISEES.  gyg 

Jield  this  a  good  attestation  of  the  whole,  which  they  considered  Ch.xi  v.  s.  2. 
as  one  will,  the  second  beins;  a  mere  continuation  of  the  first. -^''^^'"''""^'y 

T        1  •  1  ■»«■  L  11  Witnesses, 

In  this  case  Lord  Mansfield  observed,  the  memorandum  was 
not  called  a  codicil.  But  even  supposing  the  second  were  called 
a  codicil,  yet  if  written  on  the  same  piece  of  paper,  "  it  seems," 
as  is  observed  by  Mr.  Powell,  "that  whether  the  subscription 
belongs  to  both  instruments  is  a  fact  to  be  determined  by  a  jury 
on  all  circumstances."  There  certainly  would  be  no  danger  in 
leaving  it  to  the  jury  in  such  case,  as  there  might  be  when  the 
will  and  codicil  were  written  on  separate  papers,  for  one  paper 
could  not  be  substituted  for  another,  as  might  be  the  case  if  the 
attestation  of  a  codicil  on  a  separate  paper  were  to  be  under  any 
circumstances  considered  as  an  attestation  of  a  former  will. 

A  will,  indeed,  made  at  one  time,  on  several  sheets  of  paper, 
has  been  holden  to  be  valid,  though  all  the  sheets  are  not  signed 
by  the  witnesses :  but  every  part  of  it  must  be  present  at  the 
time  of  the  execution,  for  if  the  last  piece  of  paper  only  be  at- 
tested by  three  witnesses,  and  none  of  them  ever  saw  the  first, 
it  is  not  a  good  will.(l)(i)  But  unless  this  fact  be  expressly  (i)  3  Mod. 
proved,  the  presumption,  in  cases  where  the  sheets  correspond,??"^"  V^^' 
will  be,  that  the  whole  will  was  in  the  room  at  the  time.  And,  403.  7. 
therefore,  where  a  testator  made  his  will,  consisting  of  two 
sheets  of  paper,  all  of  his  own  hand-writing,  and  signed  his 
name  at  the  bottom  of  each  page,  and  made  a  codicil  also  of  his 
own  hand -writing  on  a  single  sheet,  and  then  shewed  the  whole 
of  the  will  and  codicil  to  one  witness,  who  attested  both  in  his 
presence ;  and  two  other  persons  coming  in  immediately  after- 
wards, the  testator  shewed  the  codicil  and  last  sheet  of  his  will 
to  them,  and  sealed  and  published  both  papers  in  their  presence, 
and  they  attested  both  instruments  ;  and  the  whole  will  and  co- 
dicil, after  the  death  of  the  testator,  were  found  wrapped  up  in 
the  same  paper  in  his  bureau,  but  the  two  sheets  of  the  will  not 
pinned  together ;  this  was  holden  to  be  a  goad  attestaition,  though 
the  two  last  witnesses  never  saw  the  first  sheet  of  the  paper, 
nor  was  it  produced  to  them.(2)(A)*  (2)  Bond  v. 

Seawell,  3 
___«_,  Burr.  IT7S. 

(j)  Vide  Pearson  v.  Wightman,  1  Rep.  Const.  Ct.  S.  Car.  345. — Am.  Ed. 

(fc)  Vide  Dunlap  et  al  v.  Dunlap  et  al.  4  Dessaus.  Rep.  305. — Am.  Ed. 

•  Tlie  distinction  as  to  the  finding  of  evidence  and  facts,  wliich  1  bave  so  often 
had  occasion  to  all»\de  to,  occurred  in  tliis  case.  This  evidence  being  stated  on  a 
special  case,  which  it  was  agreed  might  be  turned  into  a  special  verdict,  Lord 
Mansfield  said,  that  the  due  execution  of  the  will  could  not  be  come  at  in  the  me- 
thod wherein  the  matter  was  then  put,  for,  considered  as  a  special  verdict,  it  was 


ggQ  ACTIONS  BY  AN13  AGAIXS T 

Part.  II.         The  witnesses  must  write   their  attestations  in  the  presence 
Subscription  ^f  ^j^g  testator;  but  what  shall  be  deemed  to  be  his  presence  has 

in  the  pre-  _  r 

sence  ot  the  often  been  made  a  question  in  a  Court  of  Justice, 
testators.  j£  ^[^^  testator  were  in   such  a  situation   that  he  might  have 

''~~~~-~~  gggjj  ^jjg  witnesses  attest  the  instrument,  though  there  is  no 
positive  proof  that  he  did  see  them  do  so,  as  if,  after  seeing  the 
testator  sign  the  will,  they  withdraw  to  another  room,  and  there 
sign  their  attestation  on  a  table  opposite  to  the  door  of  the  room 

(1)  Sheers  T).  where  the  testator  lies,(l)  or  the  testator  calls  at  his  attorney's 
Sai1i%°88  '  ^^^  executes  his  will  sitting,  in  his  carriage,  and  the  witnesses, 
Davy  V.  after  seeing  the  execution,  return  to  the  office  to  write  their  at- 
3^'  ''  ^       testation,  the  carriage  being  in  such  a  situation  that  the  testator 

(2)  Casson  might  See  what  passed  in  the  office  ;(2)  or  the  curtains  are 
V.  Dade,  drawn  round  the  testator's  bed,  and  the  witnesses  attest  in  the 
R  99.    '        same  room,(3)  these  are  all  valid  attestations,  because  the  testa- 

(3)  Davy  v.  tor  had  the  power  of  seeing  the  attestation,  if  he  chose  to  exer- 
sup'.  '' "        cise  it.  But  if  the  testator  were  in  such  a  position  that  he  could 

(4)  Eccleston  not  See  the  witnesses  subscribe,  as  when  the  witnesses  subscrib- 
Sp' ke" CartT  ^'^  •"  another  room,  out  of  his  sight, (4)  though  he  expressly  de- 
79.  sired  them  to  retire,  on  account  of  the  heat  and  noise  of  the 
■».™Bi^oder  ck  room  disturbing  him, (5)  such  execution  will  not  be  good  ;  the 
1  P.  Will,      design  of  the  Statute  being  to  prevent  a  wrong  paper  from  being 

obtruded  on  the  testator,  in  the  place  of  the  true  one  ;  and  for 

(5)  Macntl        ,  .  ...  -n    <  i  •  i  i  -        -n  i 

*.  Temple,  2  this  reason  it  is,  that  even  it  the  testator  has  signed  his  will,  and 

Show.  288.     |jg  personally  present,  yet  if  his  mental  faculties  are  gone  before 

the  witnesses  actually  sign  their  attestation,  the  requisites  of  the 

(6)  Right        Statute  are  not  complied  with.(6X/) 

^^Piice'*'"'^        The  last  thing  to  be  considered  in  the  attestation  of  a  will,  is, 

Dougi.  241.     who  may  be  witnesses  to  it.     The  Act  requires   that  they  shall 

be  credible,  but  what  persons  the  law  considers  to  be  such,  has 

Ante,  214.      been  matter  of  much  controversy.(w»)  I  had  occasion,  in  the  for- 

« 

defectively  found  as  to  the  pi  int  of  the  legal  exi  cutiori  ot  the  will ;  that  every  pre- 
sumpiioii  ought  to  be  made  by  a  jury  in  favour  of  such  a  will,  when  there  was  no 
doubl  of  the  testator's  intention,  and  that  they  all  thought  the  circumstance  sufficient 
to  presume  xh^X  the  first  sheet  was  in  the  room,  and  that  the  jury  ought  to  have  been 
so  directed  ;  but  upon  a  special  verdict  iiolliing  could  be  presumed,  therefore  it 
must  be  tried  over  again  ;  and,  if  the  jury  should  be  of  opinion  that  it  was  then  in 
tl»e  room,  they  ought  to  find  for  the  will  generally. 

(?)    Vide  Jlmory  v.  Fellov;es,S  Mass.  Hep.  219. — Am.  Ed. 

Witnesses  to  ivill,  SJc. 

(m)  In  Massachusetts,  the  words  credibly  luitnesses  in  the  Stat,  of  17S3,  c.  24,  s.  2, 
must  be  construed  lo  mean  competent  u'itnesses,  and  who  were  so  at  the  time  of 


HEIRS  AND  DEVISEES.  gg| 

mer  part  of  this  work,  when  speaking  of  interested  witnesses,  to  Ch.Xiv.s.2. 
remark  the  difference  of  opinion  which  prevailed  between  Lord  ^*'.^'' 'Tl''' 

■  Tin*  1  •  •  ' '"V  of  the 

Chief  Justice  Lee  and  Lord    Mansfield  on  this  point,  and  to    witnesses. 

mention  the  Act  of  Parliament  which  had  been  made  in  conse-  '■' 
quence  of  the  decision  of  the  case  of  Anstey  v.  Dotvsing.  That 
Statute  has  provided  for  some  cases;  but,  in  such  as  are  net  with- 
in its  express  provisions,  it  seems  still  doubtful  whether  wit- 
nesses, interested  at  the  time  of  the  attestation,  can  be  made 
good  by  a  subsequent  release  :(1)   and  it  is  clearly  settled,  thatC)  See  Hud- 

soil  "V,    iVfl'SCV 

if  either  of  the  witnesses  be  infamous  at  the  time  of  subscription,  4  Burn.  Ecci. 
the  will  is  not  properly  executed.(2)  Pow'efp'Law 

To  conclude,  it  appears  from  the  foregoing  cases,  that,  to  prove  of  Devisees, 
a  will  properly  executed,  within  the  Statute  of  Frauds,  it  must'^^' 
appear  to  have  been  executed  by  the  testator,  or  some  person  (2)  Pendock 
for  him  ;  and  to  have  been  attested  by  three  credible  witnesses,  ij^i'^r^,**^" 
either  at  the  same   or  different  times  ;  that  the  witnesses  sub-  Maikinder,  a 
scribed  their  names  in  the  presence  of  the  testator,  and  that  they 
all  saw  the  same  instrument  executed. 


signing  as  witnesses.  Amory  v,  Fellowes,  5  Jlfass.  Rep  219.  Sears  v.  Dillingham 
etal.  12  i}o.  358. 

\\'here  thtre  was  a  devise  to  a  society  incorporated  for  pious  and  charitable  pur- 
poses, the  members  of  the  society,  (being  mere  trustees  to  convey  the  testator's 
bounty  to  the  objects  of  the  institution,)  were  held  competent  witnesses  to  prove 
the  sanity  of  the  testator  when  he  made  his  will,  J^Tason  v.  Thatcher  et  al.  7  JMass. 
Rep.  398. 

A  witness  to  a  will  is  competent  to  prove  its  execution,  although  the  wife  be  a 
devisee  of  real  estate  in  the  will,  if  he  and  liis  wife  join  in  a  release  of  their  interest 
under  it.   Shaffer  \.  Corbett,  3  H.  &  M Hen.  Rep.  513. 

In  Kentucky,  a  witness  to  a  will,  who  holds  a  covenant  of  warranty  from  the  tes- 
tator, stands  in'lifFerent  between  the  heir  and  devisee.  Thompsoti  v.  Shoeman, 
1  Bibb's  Rep.  401 . 

In  Tennessee ,  by  Act  of -the  Legislature,  children  of  a  testator  are  competent 
■wiint^sses  to  a  will,  provided  none  of  the  lands  of  the  testator  are  devised  to  them. 
Mien  V.  Men.  2  Term  Rep.  172. 

In  Connecticut,  the  wife  of  an  executof  was  held  to  be  a  competent  witness  to 
a  will,  he  having  no  interest  but  a  trust  in  the  estate.  Haviley  v.  Broiun,  1  Root's 
Rep.  494. 

The  Judge  of  the  Probate  is  a  good  witness.  M'Lean  v.  Barnard,  ibid,  4G2. 
Ex  parte  case  of  Ford,  2  Root's  Rep  232. 

Bui  a  legatee  is  not  a  competent  witness.  Starr  v.  Starr,  2  Root's  Rep.  303. 

The  inhabitants  of  an  incorpor;ited  society,  to  whom  property  isdevisefl,  for  the 
support  of  a  school  are  competent  witnesses  to  attest  a  will.  Conitvell  v.  Ishem, 
1  Day's  Rep.  35. 

It  a  witness  be  incompetent  at  the  time  of  attestation,  he  cannot  become  compe- 
tent afterwards  by  release,  &c.  so  as  to  support  the  will.  Cornxvell  v.  Ishem,  ibid- 
41,  n. 

By  a  Statute  of  Al'w  York,  similar  to  25  Geo  2.  if  either  husband  or  wile  be  a 
-Aitncss  to  a  will,  containing  a  devise  or  legacy  to  the  other,  it  is  void,  and  they  can- 


532  ACTIONS  BY  AND  AGAINST 

Part.  II.         To  prove  these  facts  the  original  will  should  be  produced,  ain? 

^*"of  wiii'^°"'^^"^»  at  least,  of  the  subscribing  witnesses,  if  living,  be  called, (?0 

.  If  he  can  prove  the  due  execution  by  the  testator,  in  the  pre- 

l-ongfordr.    sence  of  himself  and  the  other  witnesses,  and  their  subscription 

Ky>e,  IP.      in  the  presence  of  the  testator,  there  will  not,  unless  in  cases 

where  the  will   is  disputed,  be  any  occasion  to   call   the  others. 

But  when  the  will  is  disputed,  the  devisee  should  call  all  the 

subscribing  witnesses,  and  if  they  deny  the  due  execution,  or 

the  sanity  of  the  testator,  he  will  then  he  at  liberty  to  call 

(i)Vide  Bui. other  witnesses.(l) 

N.  P.  264.  When  it  becomes  necessary  to  prove  the  will  after  the  death 

Lowe  V.  Jol-  .    .  J  f 

liffe,  1  Black,  of  all  the  subscribing  witnesses,  their  hand-writings  should  be 
title  dem"**"  P^ovcd  ;  and,  in  such  case,  unless  there  be  some  strong  circum- 
Aiexander -y.  stances  to  shew  the  contrary,  the  presumption  is,  that  it  was 
Burr.''2224,    ^"'j  executed  ;  and  even  where  the  form  of  attestation  has  not 

been  strictly  pursued,  the  presumption  will,  nevertheless,  pre- 
Jarne5',"co-  vail.(o)  Thus,  in  two  cases, (2)  where,  after  the  death  of  all  the 
inyna, 531.  witnesses,  the  attestation  appeared  to  be  "signed,  sealed,  pub- 
let,  4  Stra.  iished,  and  declared,  by  the  testatrix,  as  her  last  will  and  testa- 
1109.  ment,  in  the  presence  of  us ,"  and  it  was  objected,  that 

it  did  not  appear  that  the  witnesses  subscribed  in  the  presence 


not  become[competent  witnesses.  Jackson  ex  d.  Cooderv.  Woods,  I  Johns.  Cas. 
163.  Jackson  ex.  d.  Beach  v.  Diirland,  2  Do.  314. 

And  the  witness  cannot  convey  any  right  to  another.  Jackson  ex  d.  Denniston 
et  al.  V.  Denniston,  4  Johns.  Rep.  311. 

In  J^eiu  Jersey,  an  executor  was  held  to  be  a  competent  witness  to  a  will,  unless 
he  take  an  interest  under  it.  Denn  ex  d.  Snedekev  v.  Alen,  Penning.  Rep.  ^3. 

On  the  trial  of  a  feigned  issue  of  devisavit  vel  non,  the  declarations  of  a  devisee, 
not  party  to  the  suit,  cannot  be  received  (o  invalidate  the  instrument  set  up  as  a  last 
will.  Bovard  et  ux.  v.  Wallace  et  al.  4  Serg.  iS  R.  Rep.  499. 

A  witness  to  a  will,  will  be  held  competent,  though  he  declare  a  legacy  therein 
bequeathed  was  for  his  benefit,  and  to  render  him  incompetent,  there  must  be  other 
proof  than  his  declaration.   Rogers  v.  Briley,  1  Hayio.  Rep.  256. 

Where  all  the  witnesses  to  a  will  are  legatees,  they  are  not  competent,  unless  a 
release  be  executed  by  the  one  offering  himself  as  a  witness.  Dickson  v.  Bates, 
■Z  Bay's  Rep.  448. 

But  if  a  witness  to  a  will  be  disinterested  at  tlte  time  of  executing  the  loill,  and 
interested  when  produced  as  a  -witness,  he  cannot  be  admitted.  Hampton  v.  Gar' 
land,  2  Hayv.'.  Rep.  14". — Am  Ed, 

(n)  Probate  may  be  granted  of  a  copy  of  a  will  where  the  original  cannot  be  pro- 
duced. Happy  V.  Will,  4  Bibb's  Rep  553.— Aim.  Ed. 

(o)  Thirty  years  possession  by  virtue  of  a  will,  is  presumptive  evidence  of  its 
due  execution,  but  such  time  must  be  computed  from  the  time  of  the  testator's  death- 
Jackson  ex  d.  Bnrhans  v.  Blanshan,  3  Johns.  Rep,  392.  Et  vide  Jackson  ex  d. 
Van  Dusen  v.  Van  Dusen,  5  Do.  144. — Am.  Ed. 


HEIRS  AND  DEVISEES.  ggg 

of  the  testatrix;  this  fact  was  left  to  the  jury,  and  they  found,ch.Xlv.s.2. 
under  the  direction  of  the  Court,  that  the  witnesses  did  so  sub-     *n*af"ty- 
cribe,  and  that  the  will  was  properly  executed. 


SECTION  III. 

Of  evidence  by  the  heir  to  defeat  the  will. 

To  defeat  the  will  the  heir-at-law  may  prove  that  it  is  a  for-      Sect.  3. 
gery  ;   that  the  testator  was  insane,  or  under  influence  or  co-deieatthewiii. 
ercion  ;  or,  that  if  it  were  once  a  legal  or  valid  instrument,  ___-«___^ 
its  operation  has  been  destroyed  by  a  subsequent  act  of  the 
testator.(/)) 

As  to  the  objection  on  account  of  forgery,  the  fact  will,  in  a 
great  measure,  depend  on  the  veracity  of  the  subscribing  wit- 
nesses, and  on  the  hand-writing  of  the  testator.  Any  circum- 
stances, therefore,  which  go  to  impeach  the  credit  of  the  wit- 
nesses, or  to  shew  that  the  signature,  purporting  to  be  the  name 
of  the  testator,  is  not  of  his  hand-writing,  will  be  proper  to  be 
adduced  in  evidence.     We  have  before  had  occasion  to  consider 


{/))  The  testator  may  be  proved  to  have  been  under  duress,  but  the  declaration 
of  the  testator  to  t!»at  effect,  made  after  the  execution  of  the  will,  cannot  be  re- 
ceived. Jackson  ex  d.  Coe  et  al.  v.  Konifftr,  2  Johns.  Rep.  31 . 

The  fact  that  (he  testator  wrote  (he  will,  altogether  in  his  o-.un  hand-writing,  is 
prima  facie  evidence  of  his  beiiig  sane,  and  throws  the  onus  probandi  of  insanity  on 
the  other  side.   Temple  v.  Temple,  I  //.  &  Munf.  Rep.  470. 

In  such  a  case  evidence  that  the  testator's  intellects  were  greatly  impaired  by  the 
use  of  opium  anil  ardent  spirits,  and  in  consequence  thereof  he  was  frequently  inca- 
pable of  business,  is  not  sufficient  to  repel  the  ptesumpiion  of  sa7iiti/  at  the  time  the: 
will  was  executed,  ibid. 

Grammatical  inaccuracies,  ignorance  on  points  of  law,  an  omission  of  part  of  tes- 
tatalor's  property,  will  not  of  themselves  vitiate  a  will.  ibid. 

The  presumption  is  always  in  favour  of  mental  capacity  ;  and  he  who  alleges  th« 
contrary,  for  the  purpose  uf  invalidating  the  deed  or  will,  must  prove  it.  Les.  of 
Hoge  V.  Fisher  et  ul.  I  Peters^  Rep.  163.  Kimlock  v.  Palmer,  1  Rep.  Const.  Ct. 
S.  Car.  225.     Et  vide  Turner  \.  Turner,  I  LitteWs  Rep.  102. 

Drunkenness  merely  of  itself, is  no  legal  exception  to  the  validity  of  a  will,  unless 
it  absolutely  disables  the  party  from  disposing  of  his  estate  with  intelligence  and  rea- 
son.    Per  YuATEs  J.  Starred  v.  Douglass,  2  Yeates''  Rep.  46. 

A  man  has  a  right  by  fair  argument  or  persuasion,  to  induce  another  to  make  » 
will,  and  even  to  make  it  in  his  own  favour.  Miller  et  al.  v.  Miller,  3  Serg.  iJ  R. 
Rep  269.  Rambler  et  al.  v.  Tnjonet  al.  7  Do.  90. 

The  failure  of  the  inducement  to  a  legacy  does  not  invalidate  it,  unless  it  be 
founded  on  fraud  or  gross  misrepresentation.  Taylor  v.  James,  4  Dessawj.  Rep.  11 . 


Fitzh.  N.  B. 
•233. 


QSq,  ACTIONS  BY  AND  AGAINST 

Part  II       ^^^  ^^^  comparison  of  this  signature,  with  other  writings  of  the 
Insanity,     testator  is  admissible. 

~ Insanity  may  be  of  three  kinds,  idiotcy,  fatuity,  and  madness 

or  Iunacy.(5') 

A  perfect  idiot,  or  natural  born  fool,  viz.  one  who  could  never 
tell  his  parents,  or  his  age,  or  who  is  not  able  to  count  a  small 
sum  of  money,  or  transact  the  like  common  matters,  is  totally 
incapable  of  making  a  will ;  and  so  notorious  must  this  defect 
be,  that  it  is  hardly  possible  to  suppose  the  case  of  an  attempt 
to  set  up  a  will  as  made  by   a  person  of  this  description. (r) 

A  •will  is  not  valid  unless  the  testator  knew  at  the  time  of  executing  it,  that  it 
was  his  will.  Siuett  et  al.  v.  Boardman,  1  Mass.  Rep.  258. 

The  bequest  of  an  article  of  property  which  does  not  belong  to  him  is,  at  most; 
only  an  incident  from  which  to  presume  insanity,  and  ought  not  to  prevail  agsinst 
positive  testimony,  shewing  his  competency  to  make  a  will  at  the  time  in  question. 
Marks  v.  Bryant,  ^  H.  &  Mimf  Refi.  91. 

An  administrator  may  shew  the  insanity  of  the  testator  in  avoidance  of  contracts, 
besides  the  execution  of  a  will.   iMzell  v.  Pinmck  et  al  X  Tyl.  Rej).  347. 

A  devise  by  a  wife  to  her  husband,  is  void.  Adams  v.  Kellogg,  Kirb.  Rep.  195— 
438.  S.  P.  Fitch  V.  Brainerd,  '2  Day's  Rep.  1G3. 

But  where  the  estate  of  the  wife  was  only  an  equitable  interest,  it  was  held  she 
could,  during  coverture,  makt-  an  appointment,  in  the  nature  of  a  will,  this  power 
being  given  to  her  by  the  husband  in  the  marriage  articles.  Barnes''  les.  v.  Ir-.vin, 
et  al.  2  Ball.  Rep  199.  S.  C.  by  name  of  Barnes'  les.  v.  Hart,  1  Feates'  Rep.  221. 

Evidence  is  admissible  of  the  declarations  of  the  testator,  made  at  any  time  sub- 
sequent to  \hf  execution  of  the  will,  tending  to  shew  that  the  testator  believed  the 
contents  of  the  will  to  be  different  from  what  they  really  are.  Reel  v.  Reel,  I 
Hawk's  Rep.  248.— Am.  Ed. 

(y)  The  subscril/iiig  witnesses  to  a  will  may  testify  their  opinion  of  the  samty  of 
the  testator;  other  witnesses  m.iy  testify yi/c^s  from  which  the  Court  and  jury  may 
form  an  opinion  whether  the  testator  was  compos  or  not.  Poole  v.  Richardson, 
3  Mass.  Rep.  330. 

Other  witnesses  may  testify  to  the  .'ippearance  of  the  testator,  and  to  particular 
facts,  from  which  the  state  ol  liis  mind  may  be  inferred  ;  but  they  will  not  be  per- 
rnitttd  to  testify  to  their  opinion  or  ju<lgment  merely  of  his  sanity,  without  stating 
the  facts,  from  which  they  draw  their  conclusions,  ibid.  Buckminster  et  al.  v.  Per- 
ry, 4  Do.  593.  Huthorn  et  al.  v.  King  exr.  8  Do.  371.  Sed  vide  Collins  v.  EUioit, 
1  Har.  &  Johns.  Rep.  1. 

An  attesting  witness  may  be  offered  to  disprove  the  sanity  of  the  testator.  Hamp- 
ton V.  Garland,  2  Hayw.  Rep.  147. 

The  witnessi-s  to  a  will  are  called  not  only  to  attest  the  fact  of  signing,  but  also 
to  determine  the  capacity  of  the  testator,  whether  he  was  saiie  or  insane  at  the  time 
of  executing  such  will.   Heytoard  v.  Hazard,  1  Bay^s  Rep.  335. 

But  an  executor  is  not  a  cnmpetf-nt  witness  lo  prove  the  saiuty  of  the  testator. 
Hayden  v.  Looms,  1  Root's  Rep.  350. — A.m.  Ed. 

fr)  On  the  trial  of  the  validity  of  a  will  impeached  on  the  ground  of  imbecility 
of  the  testator  from  childhood  to  death,  the  opinion  of  other  witnesses  than  those 
who  attested  the  will,  who  knew  him  during  that  time  without  stating  any  facts  is 
not  admisb  ble,  but  when  they  sinlt  tacts  as  the  ground  of  the  opinion,  ii  is  good  evi- 
dence. Rambler  et  al.  v.  Tryon  etal.  7  Serg.  &  R.  Rep.  90.— Am.  Ed. 


HEIRS  AND  DEVISEES.  ^gg 

Persons,  indeed,  of  but  little  better  understanding,  may  be,andch.XIV.s.  3. 
often  are,  imposed  on,  or  intimidated  by  those  around  them;  but     '"«»"">'• 
such  cases  may  more  properly  be  considered  as  falling  under  " 
the  head  of  undue  influence  or  coercion  than  under  that  of  inca- 
pacity in  the  testator. 

The  second  species  of  insanity,  nearly  allied  in  its  nature  to 
that  of  idiotcy,  generally  falls  on   persons  far  advanced  in  life, 
when  the  loss  of  memory  and  understanding  often  renders  those 
who,  perhaps,  in  the  earlier  periods  of  their  existence  were  the 
brightest  ornaments  of  society,  melancholy  instances  of  the  in- 
firmity of  human  nature.     Persons  of  this  description  are  inca- 
pable of  making  a  will,  "  for  it  is  not  sufficient  (as  Lord  Coke  Marquis  of 
observes)  that  the  testator  be  of  memory  to  answer  familiar  and  ^J^"''  oco"' 
usual  questions,  but  he  ought  to  have  a  disposing  memory,  so  23. 
that  he  is  able  to  make  a  disposition  of  lands  with  understand- 
ing and  reason,  and  that  is  such  a  memory  which  the  law  calls 
sane  and  perfect  memory.'' 

Cases  of  this  sort  generally  depend  on  a  mixed  kind  of  evi- 
dence, for  it  seldom  happens  that  such  persons  make  wills  from 
the  suggestions  of  their  own  minds  ;  they  are  generally  imposed 
on  by  those  amongst  whom  they  have  the  misfortune  to  be  plac- 
ed ;  and,  therefore,  the  conduct  of  those  around  them,  as  well 
as  the  imbecility  of  their  own  minds,  is  generally  the  subject  of 
inquiry  in  a  Court  of  Justice. 

But  the  cases  which  require  the  greatest  attention,  which  fre- 
quently baffle  the  understanding  of  the  most  acute,  and  for  the 
proof  or  decision  of  which  no  certain  rules  can  be  laid  down, 
are  those  of  wills  made  by  persons,  who,  though  in  sound  health 
and  full  vigour  of  body,  have  the  misfortune  to  labour  under 
that  mental  derangement  which  prevents  them  from  forming 
just  and  accurate  notions  concerning  the  conduct  of  human  af- 
fairs. Unlike  the  idiot,  who  seems  deprived  of  all  reasoning  fa- 
culties, the  ?wafZ7nan  appears  to  reason,  and,  unless  when  the  pre- 
dominant idea  which  always  possesses  these  unhappy  persons 
intervenes,  he  frequently  appears  to  reason  right ;  insomuch  that 
many  instances  must  have  occurred  to  the  experience  of  all 
who  have  been  in  the  habit  of  attending  Courts  of  Justice,  where 
persons  who  have  been  proved  to  demonstration  to  be  utterly  de- 
prived of  reason,  have  passed,  to  common  and  casual  observers, 
as  people  of  extraordinary  talents  and  abilities. 

The  proof  in  these  cases  may  sometimes  be  of  the  same  mixed 
nature  as  in  the  preceding,  but  more  frequently  it  is  confined 
to  the  state  of  the  testator  only  ;  for  persons  of  this  description 
4  F 


586  ACTIONS  BY  AND  AGAINSl 

Part  II.     are  more  accustomed  to  act  from  their  ov/n  whim  and  caprice 
Insanity.     ^^^^  ^^.^^^  ^^^  Suggestions  of  others.  The  following  observations 
"T     ~         of  Lord  Thurlow,  in  the  Attorney  General  v.  Parnther,  will  be 
Cas.  440.        found  applicable  to  most  cases  of  this  description  :  "  There  can 
be  (says  his  Lordship)  no  difficulty  in  saying,  that  if  a  mind  be 
possessed  of  itself,  and  that  at  the  period  of  time  such  mind  act- 
ed, that  it  ought  to  act  efficiently.     But  this  rule  goes  very  lit- 
tle way  towards  that  point  which  is  necessary  to  the  present 
subject ;  for  though  it  be  true,  that  a  mind  in  such  possession  of 
itself  ought  when  acting  to  act  efficiently,  yet  it-is  extremely  dif- 
ficult to  lay  down,  with  tolerable  precision,  the  rules  by  which 
such  state  of  mind  can  be  tried. 

"The  course  of  procedure  for  the  purpose  of  trying  the  state 
of  any  party's  mind,  allows  of  rules.  If  derangement  be  alleged, 
it  is  clearly  incumbent  on  the  party  alleging  it  to  prove  such  de- 
rangement. If  such  derangement  be  proved,  or  be  admitted  to 
have  existed  at  any  particular  period,  but  a  lucid  interval  be 
allege^  to  have  prevailed  at  the  period  particularly  referred  to, 
then  the  burthen  of  proof  attaches  on  the  party  alleging  such  lu- 
cid interval  ;  who  must  shew  sanity  and  competence  at  the  pe- 
riod when  the  act  was  done,  and  to  which  the  lucid  interval 
refers  ;  and  it  certainly  is  of  equal  importance  that  the  evi- 
dence in  support  of  the  allegation  of  a  lucid  interval,  after  de- 
rangement at  any  period  has  been  established,  should  be  as 
strong  and  as  demonstrative  of  such  fact,  as  where  the  object  of 
the  proof  is  to  establish  derangement.  The  evidence  in  such 
case,  applying  to  stated  intervals,  ought  to  go  to  the  state  and 
habit  of  the  person,  and  not  to  the  accidental  interview  of  any 
individual ;  or  to  the  degree  of  self-possession  in  any  particular 
act;  for  from  an  act  with  reference  to  certain  circumstances, 
and  which  does  not  of  itself  mark  the  restriction  of  that  mind, 
which  is  deemed  necessary  in  general  to  the  disposition  and 
management  of  affairs,  it  were  certainly  extremely  dangerous  to 
draw  a  conclusion  so  general,  as  that  the  party,  who  had  con- 
fessedly before  laboured  under  a  mental  derangement,  was  ca- 
pable of  doing  acts  binding  on  himself  and  others." 

This  doctrine  of  Lord  Thurlow,  however,  does  not  seem  to 
have  met  with  the  full  assent  of  others  who  have  had  occasion 
^art^Hoi^"  to  consider  the  subject,(l)  In  the  case  of  White  v.  Driver,{2) 
land,  11  Ves.  in  the  Ecclesiastical  Court,  Sir  John  Nichol  observed,  that 
though  it  was  scarcely  possible  to  be  too  strongly  impressed  with 
(2)  While  V.  the  great  degree  of  caation  necessary  to  be  observed  in  examin- 
Phii.  88.        ^^o  ^'^^  proof  of  a  lucid  interval,  yet  the  law  recognised  acts 


HEIRS  AND  DEVISEES.  ggy 

tlone  during  such  an  interval  as  valid,  and  that  "the  law  mustch.Xiv.s. 3. 
not  be  defeated  by  any  overstrained  demands  of  the  proof  of     ^"sanity. 
the  fact."     In  a  former  case,(l)  which  had  come  before  Sir  W.  ~^ 

Wynne,  who  was  a  very  able  Judge  in  the  Prerogative  Court, ^(jf,ri\vli"ht 
he  observed,  that  "  the  strongest  and  best  proof  that  could  arise  ''^'-d  i  Phil, 
as  to  a  lucid  interval,  was  that  which  arose  from  the  act  itself; 
that  he  considered  as  the  thing  first  to  be  examined  ;  and  if 
it  could  be  proved  and  established,  that  it  was  a  rational  act  ra- 
tionally done,  the  whole  case  was  proved."  Sir  William  then 
cited  a  passage  from  Swinburne,  wherein  it  is  said,  that  '•  if  a 
lunatic  person,  or  one  that  is  beside  himself  at  times,  but  not 
continually,  makes  his  testament,  and  it  is  not  known  whether 
the  same  were  made  while  he  was  of  sound  mind  and  memory  or 
not,  then,  in  case  the  testament  be  so  conceived  as  thereby  no 
argument  of  frenzy  or  folly  can  be  gathered,  it  is  to  be  presum- 
ed that  the  same  was  made  during  the  time  of « his  calm  and  ^ 
clear  intermissions ;  yea,  (he  adds,)  although  it  cannot  be  prov- 
ed, that  the  testator  used  to  have  any  clear  and  quiet  intermis- 
sion at  all,  yet,  nevertheless,  I  suppose  that  if  the  testament  be 
wisely  and  orderly  framed,  the  same  ought  to  be  accepted  for  a 
lawful  testament."  Having  made  this  quotation.  Sir  William 
then,  in  some  measure,  limits  the  generality  of  his  former  posi- 
tion, by  saying,  "  Undoubtedly,  there  must  be  a  complete  and 
absolute  proof  that  the  party  who  had  so  framed  it  did  it  without 
any  assistance ;"  but  adds,  "  If  the  fact  be  so,  that  he  has  done 
without  assistance  as  rational  an  act  as  can  be,  what  then  is  more 
to  be  proved  I  do  not  know,  unless  it  can  be  shewn  by  any  au- 
thority or  law  what  the  length  of  the  lucid  interval  is  to  be,  whe- 
ther an  hour,  a  day,  or  a  month.  I  know  of  no  such  law  as  that; 
all  that  is  wanting  is,  that  it  should  be  of  sufficient  length  to 
do  the  rational  act  intended.  I  look  upon  it,  if  you  are  able  to 
establish  the  fact  that  the  act  done  is  perfectly  proper,  and  that 
the  party  whp  is  alleged  to  have  done  it  was  free  from  the  dis- 
order at  the  time,  that  is  completely  sufficient." 

Perhaps,  at  last,  the  dilFerence  between  these  learned  persons 
may  have  been  more  in  words  than  substance.  The  state  and 
habit  of  sober  thinking,  required  by  Lord  Thurlow,  may  be 
evinced  in  some  degree  by  the  propriety  and  discretion  of  the 
act  on  which  the  testator's  mind  was  employed  ;  and  if,  as  in  the 
case  first  put  by  Swinburne,  the  testator  was  only  beside  him- 
self at  times,  and  it  was  not  known  otherwise  than  by  the  in- 
strument itself  whether  he  made  it  while  of  sound  mind  or  not, 
the  instrument  would  be  one  criterion  by  which  the  state  of  the 


588  ACTIONS  BY  AND  AGAINST 

Part  II.     mind  at  the  time  might  be  discovered  :  but  for  the  other  case 

Revi'C!<li->ii   of        ,    1         p      •    r  r  i  i  ■ 

a  will        P^^  "y  owinourne,  oi   a  person  who  was  never  known  to  have 
had  any  lucid  intervals,  being  deemed  to  be  competent  to  dis- 
pose of  property,  from  the  mere  circumstance  of  his  having  ac- 
cidentally made  a  prudent  disposition,  I  believe  there  is  no  other 
authority  than  the  supposition  of  that  learned  author. 

\\e  are  next  to  consider  the  evidence  necessary  to  shew  that 
a  will,  once  operating,  has  since  lost  its  force.  This  may  be 
done  in  three  ways  : 

1st.  By  proving  an  actual  revocation. 

2dly.  By  shewing  such  a  change  or  alteration  in  the  circum- 
stances of  the  testator  as  imply  such  intention  on  his  behalf, 
though  he  has  never  directly  expressed  it. 

3dly.  By  shewing  a  change  or  alteration  of  estate  in  the  pro- 
perty devised. 
29  Car.  2,  c.        The  mode  of  proof  in  the  first  of  these  cases  has  been  pointed 
'^'^'   '  out  by  positive  law;  for,  by  the  Statute  of  Frauds,  it  is  enacted, 

"  That  no  devise,  in  writing,  of  lands,  tenements,  or  heredita- 
ments, nor  any  clause  thereof,  shall  be  revocable,  otherwise  than 
by  some  other  will  or  codicil  in  writing,  or  other  writing  declar- 
ing the  same;  or  by  burning,  cancelling,  tearing,  or  obliterating 
the  same,  by  the  testator  himself,  or  in  his  presence  and  by  his 
direction  and  consent.  But  all  devises  and  bequests  of  lands 
and  tenements  shall  remain  and  continue  in  force  until  the  same 
be  burnt,  cancelled,  torn,  or  obliterated,  by  the  testator,  or  by 
his  directions  in  manner  aforesaid  ;  or  unless  the  same  be  alter- 
ed by  some  other  will  or  codicil  in  writing,  or  other  writing  of 
the  devisor,  signed  in  the  presence  of  three  or  four  witnesses, 
declaring  the  same  ;  any  former  law  or  usage  to  the  contrary 
notwithstanding." 
Per  Lord  This  clause,  like  that  before  alluded  to,  extends  not  only  to 

•J2!  *'  devises  of  lands,  but  also  to  suras  of  money  charged  upon  them, 

both  must  be  revoked  in  the  same  manner. 

By  this  clause  of  the  Act  of  Parliament,  three  modes  of  can- 
cellation are  pointed  out,  viz.  1.  The  making  a  new  will.  2.  An 
express  written  declaration  of  the  testator's  intention  to  revoke, 
signed  by  him,  in  the  presence  of  three  or  more  witnesses  ;  or 
lastly.  The  destruction  of  the  instrument  by  burning,  tearing, 
or  obliterating. 

In  order  to  shew  a  revocation  by  the  first  of  these  means,  it 
must  be  proved,  that  the  testator  made  another  perfect  and  com- 
plete will,  which  of  course  must  be  produced,  and  proved  in  the 
same  manner  as  the  original  will  j  for  if,  by  any  informality  in 


HEIRS  AND  DEVISEES.  ggg 

the  execution  of  such  second  will,  it  does  not  operate  as  a  devise  ch.  XIV.  s,  3. 
of  the  land,  it  will  not  have  the  effect  of  revoking  the  former      Actual 

...  Ill         revocation. 

Will ;  and,  therefore,  where  the  second  will  was  executed  by  the 
testator,  in  the  presence  of  three  witnesses,  but  they  did  not 
sign  their  names  in  his  presence,(l)  it  was  holden,  that  this  did  (i)Egg;lestone 

•  t).   Sot Ic6 

not  operate  to  cancel  the  first  will ;  for  there  did  not  appear  to  i "show.  89. 
be  any  intention  of  the  testator  to  revoke  his  will,  without  atC«'th.80. 

.  ,  .  1  ....  J.    ,  .  S.  C.   Onyous 

the  same  time    making  another   disposition   01    his  property  ;  v.  Xyier, 
and,  as  the  whole  of  his  intention  could  not  take   eft'ect,  the '  ^- ^- ^'*''- 
act  done  by  him  was  considered  as  a  nullity,  and  the  old  will 
remained. 

The  second  mode  of  cancellation,  viz.  the  declaration  of  his  Vide  1  p. 
j|*  intention  to  do  so,  by  writing,  signed  in  the  presence  of  three  co'x's  eii. 
1  or  more  witnesses,  which  writing  is  not  in  itself  intended  to  note  (i.) 
\ operate  as  a  will,  does  not,  according  to  the  opinion  of  Lord 
Cow  PER,  require  this  formality  of  the  subscribing   witnesses 
signing  in  the  presence  of  the  testator;  for  this  depends  on  the 
6th  section  of  the  Statute  only,  which  barely  requires  that  the 
writing  shall  be  so  signed  by  the  testator ;  whereas,  when  that 
section  speaks  of  a  will,  such  a  will  is  intended  as  is  required 
by  the  preceding  section  of  the  Act.     A.nd  on  the  other  hand, 
the  words  "  signed  in  the  presence  of  three  or  four  witnesses,"  Ante,  58S, 
referring  to  the  words  other  writing,  and  not  to  the  word  will, 
which,  as  we  have  seen   before,  may  be  good  without  being 
signed  in  the  witnesses  presence  ;  a  will  properly  executed,  tak- 
ing effect  as  such,  operates  as  a  revocation  though  not  signed  by 
the  testator  in  the  presence  of  the  witnesses.(2J  (2)  vide  Hoil 

Lastly,  a  will  may  be  shewn  to  be  destroyed   by  its  having  ^J^j'^'^'^''^„ 
\l  been  burned,  cancelled,  torn,  or  obliterated,  though  no  other  in- EUis  v.  Smith, 
struinent  has  been  made  by  the  testator.     But  it  must  appear  ^^'''Jgg'^'^'''" 
in  proof  that  such  burning,  &c.  was  done  animo  revocandi,  for  4  Ves.jun.ii. 
the  apt  is  only  considered  as  a  symbol  of  the  intention ;  and, 
therefore,  if  a  man  were  to  throw  itik,   instead  of  sand,  on  his 
will,  it  would  not  be  an  obliteration  within  this  clause  of  the 
Act.(3)     So,  if  having  two  wills  of  different  dates  by  him,  he  (•'')  Per  Lord 
should  direct  the  former  tp  be  cancelled,  and  through  mistake,  cowil' 52.' 
the  person  to  whom  such  directions  were  given  should  cancfel  per  Lord 
the  latter,  this  would  be  no  revocation  of  such  latter  will.fs)  91i?.*i"^''' ^  ^■ 


Will.  346. 


f 


Actual  revocation. 

(s)  In  Massachusetts,  a  will  may  be  revoked  by  a  sahsequ''nt  will  or  codicil, 
by  burning  or  cancelling  the  samp,  by  being  torn  or  obliterated  liy  the  testator,  or 
by  his  dircclion  iu  his  presence.    Avery  tt  al.  r.  IHxley,  4  Mass.  liep.  ifJO, 


590  ACTIONS  BY  AND  AGAINST 

Part  II.     On  the  same  principle  of  intention,  where  the  testator  having 

Actual      prepared  a  second  will,  hut  which  he  had  not  executed  in  form, 
revocation.   [ 
began  to  tear  the  first  will,  but  desisted  on  being  told  that  the 


Though  a  seal  be  not  necessary  to  a  will,  yet  a  testator  might  tear  off  the  sea!, 
which  he  might  consider  as  an  essenlial  part  of  the  execution  witii  the  express  de- 
sign thereby  to  revoke  the  will.  iOid. 

Where  a  second  is  made  containing  a  clause  of  revocation,  the  preceding  will, 
though  not  formally  cancelled,  is  revoked.  BomUnot  et  al.  v.  Bradford,  2  Dall. 
Rep.  2<56.  S.  C.  2  Yeates'  Rep.  l"0.  Laivson  v.  Morrison  el  al.  2  Bo.  286. 

In  J\i'etu  York,  parol  evidence  of  a  revocation  of  a  will  relating  to  real  estate,  is 
inadmissible.  Jackson  ex  d.  Coe  v.  Kniffin,  2  Johns.  Rep.0l. 

In  JVorth  Carolina,  a  will   may  be  revoked  by  parol  declarations,  but  the  words 
must  imply  a  revocation  instanter  ;  therefore  where  a  man  was  directed  by  the  tes-  ^ 
tator  to  destroy  or  cancel  a  will  which   he  refused  to  do,  but  informed  the  testator 
he  would  deliver  it  to  him,  this  was  held  to  be  no  revocation.     Giles  v.  Giles,  Rep. 
in  Co.  of  Ccnf.  174. 

In  Pennsylvania,  a  will  in  writing  of  lands  may  be  revoked  by  a  parol  republica- 
tion of  a  fornier  will  in  writing.  Havards.  Davis,  2  Binn.  Rep.  406. 

In  order  to  determine  the  intention  of  the  testator  as  to  whether  the  republica- 
tion will  operate  as  a  revocation,  the  contents  may  be  proved  by  parol,  if  the  will 
itself  cannot  be  found,  provided  it  be  the  best  evidence  that  can  be  produced,    ibid. 

The  mere  making  a  second  testament  is  a  revocation  of  the  first  testament  in  rela- 
tion to  personal  estate.  Boudinot  et  al.  v.  Bradjord,  2  Dall.  Rep.  266. 

Where  a  second  will  is  destroyed  withoxit  more,  the  preceding  will  not  having 
been  cancelled,  is,  generally  speaking,  ipso  facto  revived,  ibid.  Laivson  v.  Alor- 
rison,  2  Dall.  Rep.  289. 

Revocavit  vel  no7i,  is  a  question  of  intention,  and  evidence  is  admissible  to  shew 
the  intention  of  the  testator  in  cancelling  a  will,  Boudiriot  et  al.  v.  Bradford,  2 
Yeates'  Rep.  170.  S.  C.  2  Dall.  Rep.  166. 

The  Act  of  Assembly  being  silent  as  to  revocations  jti  law,  such  as  burning,  &c. 
such  revocations  must  be  proved  as  other  matters  of  fact,  without  regard  to  the  form 
prescribed  by  the  Act  for  the  probate  of  wills.  Burns  v.  Bums,  4  Serff.  i^  R, 
Rep.  295.  •  f 

A  paper  writing,  though  informal  to  operate  as  a  will  of  lands,  may  yet  revoke 
A  former  will.    Clark  v.  Eborn,  1  Car.  Law  Rep.  91. 

A  will  is  not  revoketl  by  the  testator  directing  the  person  with  whom  it  was  de- 
posited to  burn  it,  where  he  refuses  to  do  so.  Giles  v.  Giles,  Cam.  &  JVorwood's 
Rep.  174. 

Where  a  win  has  been  crossed  and  interlined,  and  the  seals  torn,  and  the  jury 
find  it  was  done  animo  revoca?idi,  this  is  a  sufficient  revocation.  Johnson  v.  Brails' 
ford,  2  A^.  &  M' Cord's  Rep.  272.     Et  vide  Taylor  v.  Taylor,  ibid.  482. 

An  endorsement  (without  date)  on  a  will  in  these  wox'ds,  "  this  will  is  intended 
to  be  altered,  and  will  be  if  time  is  given,''  does  not  amount  to  a  revocation.  Ray 
V.  Walton,  2  Mass.  Rep.  73. 

The  act  of  cancelling  a  will,  is  nothing,  unless  it  be  done  animo  revocandi.  Jack- 
son ex  d.  Howard  et  al.  v.  Holloivay,  7  Johns.  Rep.  394. 

A  will  of  personal  estate  is  revoked  by  a  subsequent  will  not  written  or  subscribed 
by  the  testator;  but  which  was  prepared  by  his  directions,  corrected  by  hina,  and 
which  he  afterwards  declared  was  his  last  will.    Glasscock  v.  Smither,  1  Call't 


Rep.  479. 
The  execution  of  a  third  will  is  a  revocation  of  two  former  wills,  though  the  last 


? 


HEIRS  AND  DEVISEES.  ^91 

second  was  not  a  perfect  instrument,  and  never  afterwards  per-Ch.Xiv.s.s. 
fected  such  second  will,  it  was  holden  that  the  first  was  not  re-   ..JvSon, 

voked.(l)     And  where  the  testator,  being  angry  with  one  of  the 

devisees,  began  to  tear  his  will  with  the  intention  of  destroying  (i)  Hyder. 

it,  and  having  torn  it  in  four  pieces,  was  prevented  from  pro-  e^^J^'^^^^f -^g, 

ceeding  further,  partly  by  the  efforts  of  a  by-stander,  who  held  short  dem. 

his  arms,  and  partly  by  the  entreaties  of  the  devisee,  and  then  f,^'^'^^"  ^ast 

becoming  calm  put  by  the  several  pieces,  and  expressed  his  sa-  419. 

tisfaction  that  no  material  part  of  the  will  had  been  injured,  it 

was  left  to  the  jury  to  say,  whether  he  had  completely  finished 

all  that  he  intended  to  do  for  the  purpose  of  destroying  the  will, 

and  the  jury  having  found  that  he  had  not,  the  Court  refused  to 

disturb  the  verdict.(2)  (2)  Doe  dem. 

In  like  manner,  where  intending  to  add  new  trustees  and  be- pe[!(;^s,  3  B. 
quests,  the  testator  obliterated  the  name  of  one  trustee,  and  in-  8t  A.  489. 
troduced  another,  without  altering  the  general  purposes  of  the 
trust,  but  did  not  republish  his  will,  so  as  to  give  efficacy  to  it 
as  a  new  devise,  the  Court  were  inclined  to  be  of  opinion  that 
the  whole  will  remained  unaltered  ;  but  they  determined,  that 
at  most  it  was  a  revocation  pro  tanto  only,  and  did  not  totally 
destroy  the  ,will.(3)  ^  ■  ^  ^''^^  Ijfin' 

On  the  other  hand,  if  it  plainly  appear  that  the  testator  in- 3  Bos.  &PiiK 
tended  to  cancel  the  will,  and  did  any  act  towards  such  cancel- ^^' ^''^* 
lation,  though  its  destruction  was  not  completed,  it  will  amount 
to  a  revocation  ;  and,  therefore,  where  a  testator,  (having  often 
declared  himself  dissatisfied  with  his  will,)  being  in  bed  near 
the  fire,  ordered  a  person  who  was  in  the  room  to  fetch  it,  and, 
after  looking  at  it,  gave  it  a  rent,  and  threw  it  on  the  fire,  from 
whence  it  fell,  but  would  have  been  burned  had  not  the  person, 


he  lost  or  mislaid,  in  which  case  parol  evidence  is  admissible  to  prove  its  contents 
Legare  v.  Ash,  1  Bay's  Rep.  464. 

The  testator  made  a  will  thereby  expressly  revoking  a  former  will,  and  after- 
wards destroyed  his  subsequent  will  with  an  intention  thereby  to  give  effect  to  a 
former  will,  and  died  ;  the  first  will  was  held  to  be  valid.  Linginfetter  v.  Liiigin- 
fetter,  Hardin's  Rep.  119. 

The  testator  made  a  will  and  subjoined  thereto  a  codicil ;  he  afterwarils  made  a 
second  will  and  annexed  ^postscript  to  it,  by  which  he  "  revoked  all  former  -wills" 
and  signed  i\\e postscript ;  he  then  cancelled  the  secon(l  will  by  cuiting  his  name 
out  of  it,  but  leaving  the  postsci-ipt  with  his  name  to  it ;  ih\s postscript  and  first  will 
were  preserved  by  the  testator  and  found  after  his  death;  it  was  held  that  ihe post- 
script to  the  second  will  was  a  substantive  revocation  of  the  first  will,  and  that  can- 
celling  the  first  will  did  not  necessarily  cancel  tha  postscript  also,  so  as  to  set  up  the 
first  as  the  will  of  the  testator.  Rates  v.  Holman,  3  //  i^  Manf,  Rip.  50'2. 

Parol  evidence  is  admissible  in  such  cases  to  shew  the  situation  of  the  testator, 
and  the  quoanimo  the  cancelling  was  made.  ibid. 


593  ACTIONS  BY  AXD  AGAINST 

Part  II.     who  was  SO  desired  to  fetch  it,  taken  it  off  the  fire  unobserved 

rev^ocliion.   "^^  ^^^  testator,  it  was  holden  to  be  a  revocation  ;(!)*  and  if,  hav- 

ing  made  two  parts  of  a  will,  the  testator,  animo  revocandi,  de- 


(1)  Bibb  (Jem.  stroy  one,  it  is  sufficitnt  to  annul  both.(2) 

Moiew  Tho-  These  cases,  therefore,  depending;  entirely  upon  the  intention 
1043.  of  the  testator,  are  altogether  the  subject  of  parol  evidence,  and 

,^^c-    T.,      resolve  themselves  into  a  question  of  fact  to  be  determined  by 

(2)  Sir  Edw.  .  '  •' 
Seymour's        the  jury. 

Case,cite^i  'p^g  doctrine  of  implied  revocations,  by  reason  of  an  altera- 

Com.  433.  ....  „  -^ 

Vide  Burton-  tion  in  the  circumstances  of  the  testator,  was  borrowed  from  the 
GHbert  ^^^^^  ^^^^'  ^"^  ^^^  hfien  but  recently  introduced  into  Westmin- 

Cowp.  49.  ster  Hall,  in  cases  of  devises  of  landed  property.  It  is  now, 
nJp'^n'^'^jig' 'however,  clearly  settled,  that  the  marriage  of  the  testator,  and 
508.  the  birth  of  a  child  subsequent  to  the  time  of  making  his  will, 

wherein  no  provision  is  made  for  the  objects  of  these  relations, 
whether  such  child  be  born  in  the  life  time  of  the  testator,  or  af- 
ter his  death,  and  whether,  in  the  latter  case,  he  knew  of  his 
(3)Christo-  wife's  being  ensient  or  not,  amounts  to  a  revocation  ;(3)  for,  it 
top^her  cited' ^*  presumed,  that  when  a  man  makes  his  will,  he  annexes  a  tacit 
5  T.  Rep.  55.  condition  to  it,  that  it  shall  not  take  effect  if  there  should  after- 
Lancashire  tj.  Wards  be  such  a  total  change  in  the  situation  of  his  family.  But 

Lancashire,  5  marriage  alone  does  not  produce  this  effect,  for  a  woman  must 
T.  Rep.  49.  "... 

be  supposed  to  take  care  that  a  suitable  provision  is  made  .for 

(4)  Jackson TJ.jjgf  ^^  ^^g  ^i^ie  of  marriage  ;(4'l  neither  will  the  mere  circum- 

Hurldock,  i  -i  i   i     •         i 

cited 5 T. Rep.  stance  or  another  child  being  born  operate  to  annul  a  will,  made 
53-  by  a  married  man,  whereby  he  provides  for  the  children  then  in 

(5)  Shepherd  esse,(5)  And,  if  a  man  who  lives  with  a  woman,  to  whom  he  is 
ciifd^'sir'^'^'^'  ^^^  married,  makes  a  will,  whereby  he  provides  for  her,  and 
Rep.  51,  and  such  children  as  he  may  have  by  her,  and  afterwards  marries 
Phtiiips  '^6''>  ^"^  ^^^  legitimate  children  by  her,  this  is  not  deemed  such 
therein  cited,  a  total  alteration  of  his  circumstances,  as  to  revoke  the  will  so 

(6)  Kenebei    made  before  his  marriage. (6)(0 

V.  Scrafton, 

3  East,  530. 

•  There  were  sevei-al  other  circumstances  in  this  case  of  subsequent  declarations 
and  devises  of  the  testator  ;  but  tliese  were  considered  merely  as  confirmatory  of 
the  intention  expressed  at  the  time  he  did  the  act. 

Implied  revocation, 

[()  In  Pennsylvania,  under  the  Act  of  19tli  Jipril,  1794,  marriage  or  birth  of  issue 
aniounts  to  a  revocation  of  a  will  previously  made,  only  so  far  as  regards  the  widow 
or  child,  or  children  after  born,  although  the 'subsequent  issU''  is  the  testator's  only 
child.  As  respects  provisions  not  iiiterfering  with  the  interest  of  the  widow  .qnd 
children,  such  as  the  appointment  of  executors,  a  power  to  sell  for  pjtyraent  of 
debts,  &c.  the  will  still  remains  in  force.    Coates  v.  Hitn^h.-'s,  3  Rinn   Rep   498. 

A  subsequent  marriage,  and  having  a  child  after  the  execution  of  a  will,  is  an  im- 


HEIRS  AND  DEVISEES.  593 

The  ground  on  which  some  of  the  earlier  cases,  which  deter- ch.  XIV.  s.  3, 
mined  (his  alteration  of  circumstances  to  be  a  revocatioir,  pro-      l""i>i'«ii 

'  revoc'ition. 

ceeded,  was  an  implied  intention  "in  the  testator  subsequent  to  

making  the  will  to  revoke  it  ;  and  as  this  was  a  presumption  of  y;  ^^  ^,^jg^ 
law,  it  was   permitted   to  rebut  it   by  evidence   of  declarations '20, 6sc. 
made  by  the   testator,  which  siiewed  a  contrary  intention;   but  i^fl^^i^Jym"^^' 
since  it  has  been  put  on  tlie  other  ground  of  a  condition  annex-  '^^• 
ed  to  the  will  at  the  time  of  making,  on   which  ground  alone 
the  revocation  in  favour  of  a  posthumous  child,  when  the  testa- 
tor did  not  know  of  his  wife's  pregnancy,-  can  be  supported  ;  it 
may  be  much  doubted,  whether  such  evidence  can  be  received, 
in  the  case  of  a  will  of  lands.     In  the  last  case  which  came  be- Vide  2 East, 
fore  the  Court,  the  Judges  cautiously  abstained  from  giving  any  ^^^' 
opinion  on  this  point. 

A  will  may  also  be  shewn  to  be  revoked,  by  any  change  of 
the  testator's  estate  in  the  lands  devised,  as  if  he  take  a  new 
estate  in  them  after  making  the  will.     This  does  not  at  all  de- See  (he  cases 
pend  on  any  intention  of  the  testator;  on  the  contrary,  where  eoUecied '"  ' 
he  does  an  act  for  the  very  purpose  of  making  his  estate  more '}^'"-^^""^- 
perfect,  and  his  will  more  firm,  yet,  if  by  that  act  he  acquires  a 
new  estate,  his  will  is  revoked,  or  rather  never  operates  on  the 
estate  since  acquired,  any  more  than  it  woirld  on  any  lands  sub- 
sequently purchased.    In'these  cases  the  heir-at-law  must  prove 
the  alteration  of  the  estate  by  regular  evidence  of  the  different 
documents,  whereby  it  was  effected. 

Having  thus  shewn  how  a  will  may  be  proved  by  the  heir-at- Rppubliiia- 
law  to  have  been  defeated,  it  will  be  proper,  before  we  close  the  '°"' 
chapter,  to  say  a  few  words  on  the  nature  and  effect  of  republi- 
cation ;  the  proof  of  which  will,  in  some  cases,  extend  the  opera- 
tion of  a  will  to  lands  not  otherwise  affected  by  it ;  and,  in 
others,  restore  its  powers  after  a  revocation,  provided  it  was  not 
actually  obliterated  or  destroy ed.(t<) 

plied  revocation  of  a  will,  if  the  testator  have  not  siiict  these  events  look  place  re- 
published his  will,  or  signified  an  intention  that  it  should  stand.  fVilcox  v.  Rootes, 
et  al.  1  Wash.  Rep.  175.     Vide  Yeiby  v  Yerbij,  3  CaTs  Rep.  334. 

Ciicmnstances  may  be  proved  to  rtbut  the  prtsumptioaot'  an  implied  revocatipn, 
ibid. 

In  JSTorlh  Carolina,  before  the  Act  of  1808,  the  birth  of  a  child  before  the  mak- 
ing of  a  will,  did  not  amount  to  a  revocation  of  it.  JVt  Coy  v,  J\L  Coy,  1  Murphey's 
Rep.  447. 

Where  a  tract  of  land  i9  devised,  and  the  testator  afti  r  the  makini;  of  the  will  sells 
it,  such  sail-  does  not  amount  to  a  revocation  in  law,,  so  as  to  prevent  the  probate  oiC 
the  will.  M'Ruiney  x.  Clark,  1  Tuyl.  T.  Rep.  -^78.— Am.  Eu. 

Rrpuhlication  of  will. 
(m)  Any  circumstance  plainly  indicative  of  the  satisfaction  of  testator  with  the  paper 

4  G 


594}  ACTIONS  BY  AND  AGAINST 

Pari  II.  A  will  of  lands  operates  only  on  such  as  the  testator  had  at 

oFtheViii.    *'^^  t'*"C  of  makinj;  it,  for  lands  subsequently  acquired  do  not 

-  pass  by  it.  But  as  the  will  is  ambulatory  till  the  time  of  the  tes- 

tator's death,  a  republication  subsequent  to  the  time  of  the  tes- 
tator's having  acquired  such  additional  property  or  estate,  will 
cause  the  will  to  operate  thereon  ;  provided  the  words  of  the 
will  are  sufficient  to  cover  such  newly  acquired  property.  In 
other  words,  the  effect  of  republication  is  the  same  as  making  a 
new  will,  and  the  old  will  operates  the  same  as  if  it  had  been 
originally  made  at  the  time  of  its  republication.Ca-) 

Before  the  Statute  of  Frauds  any  declaration  by  the  testator, 
that  the  instrument  before  executed  continued  to  be  his  will, 
was  considered  as  amounting  to  a  republication,  and  such  is  still 

2  Atk.  599.  the  law  with  respect  to  copyhold  or  leasehold  interests  ;  but  as 
freehold  estates  are  by  that  Statute  devisable  only  in  a  particu- 
lar form,  and  the  effect  of  republication  is  the  same  as  making 
a  new  will,  it  follows  that  a  republication  of  a  will  actually  re- 
voked, or  which  is  to  make  it  affect  newly  acquired  property, 
must  have  all  the  formalities  which  were  required  to  make  an 
original  will.  The  republication  may  be  effected  either  by  a 
new  execution  of  the  old  will,  or  by  making  a  codicil,  also  at- 
tested in  the  presence  of  three  witnesses,  referring  to  the  will 

(1)  Martin r.  as  an  existing  instrument.(l)  And  a  codicil  so  made  will  pass 
1  Vps.  440.  lands  which  a  testator  had  contracted  for  before,  but  taken  a  con- 
,  ^ ,      , .      veyance  of  after  the  making  of  his  will. ^2)     But  it  should  be 

(2)  (loodlitle         "^  *.    .     . 

d.  Wood-  observed,  that  where  the  codicil  is  properly  such,  and  not  a  con- 
houset^.Me-  tinuation  of  the  original  instrument,  it  Will  only  res/ore. the  will 

i-eclith,  2  M.  .  y  •; 

&S.  5.  or  eortend  it,  and  will  not,  however  well  made  itself,  operate  so 

r'^l  Attorne  ■  ^^  ^^  make  that  which  was  invalid  in  its  execution  a  perfect  in- 
Geni  rai  v.  strument ;  wherefore,  if  a  will  be  made  without  witnesses,  and  a 
Ch*^270.  '  "^'codicil  added  which  is  properly  attested,  this  will  not  give  an 
Vide  ante,      operation  to  the  original  will  which  it  never  had  before.(3)(y) 

Martin  v.  ~ 

oayage,  gg  ^jj  ^^m  ^^  ^  pnrlicular  period,  may  be  taken  to  be  a  republication  from  that  time. 

See  also  Good-  ^^'^  particiiliirly  ;i  eoiiicil  is  so  considered.    Hatch  v.  Hatch,  2  Hay-w.  Rep.  32. 
title  V.  Otway       Lands  purfiiasc-d  afier  the  making  a  will,  will  pass  by  a  republication  of  such  will. 

Lucy  V.  Dir.xjch,  1  Root^s  Rep.  82. 

In  Virginia,  (lie  English  rule  at  common  law  was  recognised,  but  is  altered  by  a 

legislative  provision.  Lervis  exr.  x.J^'urtou,  1   fVash.  Rep.  100. — Am.  Ed. 

(x)  A  demise  of  lands  will  not  pass  lan<ls  acquired  subsequently  to  the  execution 
and  publication  of  the  will,  without  i-epublication.  Jackson  ex  d  Ilo-uiard et  al.  v. 
IloUoway,  7  Johns.  Rep.  .IQ^.  Jackson  ex  d.  Rogers  et  at.  v.  Potter,  9  Do.  312. 

So  in  Pennsylvania,  unless  there  was  a  republication.  Burke  v.  Les.  of  Young, 
2  Serg.  &  R.  Rep.  383.— Ax.  Ei). 

(v)  A  codicil  (written  on  the  back  of  (lie  will)  which  was  executed  in  the  pre- 


HEIRS  AND  DEVISERS.  gg^ 

From  this  rule,  which  requires  the  will  to  be  republished  and  ch.Xlv^s.  3. 
attested  in  the  same  manner  as  was  necessary  to  constitute  an  li'^pui^'icaiion 

original  will,  it  follows,  that  all  parol  evidence  or  an  expressed  

intention  that  the  will  should  stand,  is  inadmissible  in  this  case. 

There  is  a  distinction,  however,  to  be  made  between  a  will 
which  is  actually  and  formally  revoked,  and  one  which  is  only 
revoked  by  the  circumstance  of  another  will^being  subsequently 
made.     In  the  latter  case,  we  have  before  seen  that  the  new  will 
does  not  revoke  the  old  one,  unless  it  be  itself  a  perfect  instru- 
ment :  and,  on  the  same  principle  that  it  was  so  determined,  it 
has  been  also  holden,  that  if  a  man,  having  made  two  wills,  keep 
them  both  by  him  uncancelled,  and  afterwards  cancel  the  last, 
this  of  itself  operates  as  a  republication,  or  rather  as  a  restoration  ip  Goodright 
of  the  old  will,  so  partially  and  conditionally  revoked,  without t,.  Giazin,  4 
any  formal  act  of  republication  ;(1)  but  had  the  first  will  been  ^"^"'- ^^^^• 
actually  cancelled,  when  the  second  was  made,  the  subsequent (2)  Bmton- 
destruction  of  the  second  will  would  not,  of  itself,  have  restored^''"*  }!"^''" 

bert,  Cowp, 

the  operation  of  the  first.(2)  49. 


SECTION  IV. 

Of  the  evidence  in  an  action  agaijist  an  heir  or  devisee,  on  the 
specialty  of  his  ancestor  or  testator. 

Though  a  man's  executors  are  bound  for  all  debts  due  from      Sect.  4, 

,  .  .  1     •     •  II  11-1  •  1  •  Action  against 

him,  yet  ^n  heir  is  only  bound  by  judgments  against  him,  or  debts      iieir  on 
secured  by  recognisance  or  bond  under  seal,  in  which  the  heir  is     sp  ciahy. 
particularly  named.  — — — 

I  do  not  deem  it  necessary  to  gay  any  thing  here  respecting  the 
proceedings  on  a  judgment  obtained  against  the  ancestor,  or  re- 
cognisance entered  into  by  him,  further  than  that  the  proceeding 
being  rather  against  the  land  than  the  person  of  the  heir,  the 
principal  point  to  be  established,  on  a  scire  facias  against  the 
heir  or  terre-tenants,  will  be  the  seisin  of  the  ancestor  at  the 
time  of  or  subseqnent  to  the  judgment  or  recognisance;  and  that 

sence  of  two  subscribing  witnesses,  one  of  whom  was  different  from  the  two  wit- 
nesses to  the  will,  does  not  give  validity  to  the  will.  Dunlap  ct  al.  v.  Dunlap  et  ah 
4  Desausa.  Hep.  305, — Am.  Eu. 


596  ACTIONS  BY  AND  AGAINST 

Part  II.     seisin  being  once  established,  the  land   is  bound  and  a  moiety 
'''hTi/on'"^'  extendible,  whatever  subsequent  disposition  may  have  been  made 

specialty.       of  it.(a) 

~ The  case  of  an  action  against  the  heir,  on  the  bond  of  his  an- 
cestor, materially  differs  from  the  above  proceeding.  The  defen- 
dant may  plead  generally,  riens  per  discenf,  and  then  it  will  be 
incumbent  on  the  plaintiff  to  prove  not  o,nly  the  seisin  of  the 
obligor,  but  a  descent  to  the  defendant;  and  in  the  event  of  his 
falsifying  the  plea,  the  plaintift'has  (unless  in  the  case  of  an  es- 
tate per  autre  vie,  the  provisions,  of  the  Statute  of  Frauds,  re- 
specting which  will  be  noticed  hereafter,)  a  judgment  against  the 
defendant  personally  for  his  whole  debt,  who  is  answerable  for 
his  false  plea,  however  small  the  value  of  the  lands  which  have 
(i)PlowJ.      descended  to  him  may  be.(l)  The  plaintiff,  however,  is  not  con- 
An^^i '^'^'^^''fined   to  this  remedy,   but  by  suggesting  that  particular  lands 
Mod.  44.        have  descended  to  the   heir,  may  have  the  whole  of  those  lands 
delivered  to  him  in  execution,  whereas  if  he  sued  out  an  elegit 
against  them  as  the  land  of  the  heir,  he  would  have  only  a  moi- 

mVideHer.e/^/o)^;,) 
bert's  cast",  3  „         i 

Co.  12.  The  descent  must  be  proved  as  laid  in  the  declaration:  for 

Bowyer  7>.      though  the  plaintiff  is  not  bound  to  state  in  what  manner  the  de- 

ivivitt,  sir  \V.  .      '      . 

Jones,  87.       fendant  is  heir,(3)  he  must,  when  he  states  an  immediate  de- 
fSIDenham    ^^^"^  ^^  ^'^^  defendant,  shew,  that  the  estate  so  descended;  proof 
•w.  Stephenson  in  such  casc,  either  by  the  plaintiff  or  the  defendant,  that  the 
Mod  241.'     'ari^  descended   first  to  ./5.  and  then  to  the   defendant,  woul^ 
not  support  a  declaration  so  framed  :[4)  but  if  the  intermediate 
casJ  ^Cro!       ^^^^  '^'^^  never  had  actual  seisin  of  the  fee,  as  where  t^.  being 
Car.  151.        seised  in  fee,  bound  himself  and  his  heirs  in  a  bond,  and  having 
two  sons,  Ji.  and  C  limited  the  estate  to  himself  for  life,  remain- 
der to  B.  his  eldest  son  in  tail,  reversion  to  his  own  right  heirs, 
and  died,  upon  which  B.  entered  and  died,  leaving  a  son  B.  who 
died  without  issue,  whereupon  the   estatp-tail  became  extinct, 
and  the  reversion  coming  into  possession  descended  upon  C.  the 
youngest  son  of  the  obligor,  though  C.  was  heir  of  B.  as  well  as 
of  ^1.  it  was  held  that  li^  might  be   charged  as  the  immediate 


(«)  Lands  in  Pennsylvania,  are  chattels  for  the  payment  of  dehts,  ^and  although 
they  do  not  pass  into  the  hands  of  the  executor  in  the  same  way  that  chattels  do, 
they  are  lial)K-  to  be  seized  and  sold  in  like  mann:  r  as  if  they  had.  Wilson  v.  IVai- 
aon.  I  Peters^  Rfp.  373.  Graffs.  Smitli's  adms.  1  Ball.  Itep.  481.  jyiorris''s  les. 
y.  Smilh,  1  Yeatea''  Rep.  2S8.   S  C.4  nail.  Rep.  119. 

In  South  Carolina,  viMe  Gadndeii's  e.vr.  v   Lord''s  exr.  1  Desauss.  Rep.  216. 

So,  in  Kentucky,  [{eardon  v.  Seurij,  3  Jlfarsh.  Rep.  542. — Am.  En. 

{b)  Hammond  v.  Guiiher,  3  H.  c^  Mllen.  Rep.  218 Am.  Ed. 


HEIRS  AND  DEVISEES.  ggy 

heir  of  A.,  for  B.  and   D.  being  both  seised  of  only  an  estate- Ch.Xiv.s.  4. 
tail.  C.  took  tiie  estate  in  fee  immediately  from  his  father.r  1)  Action  against 

hf  If  on 

To  prove  seisin  and  descent,  the  fact  of  the  obligor  being  in     specialty. 

possession,  or  receipt  of  rent,  and  that  the  defendant  succeeded  — — 

him,  will  be  prima  facie  evidence,  and  will  cast  the  bi^rthen  on  (J)  Kiiiow  r. 
the  defendant  of  accounting  for  it  by  some  other  title.  iVj.*^"' 

This  he  may  do  by  shewing  that  the  obligor  had  mortgaged 
the  land  zn/ee,(2)  that  the  estate   was  copyhold, (5)  that  the  ob-  Penson,2 
ligor  had  only  an  estate-tail,(4)  or  a  reversion  expectant  on  such^''^- ^^*- 
an  estate  in  another,(5)  which,  though  it  would  be  assets  should  (3)4Co.22,a. 
the  estate-tail  become  extinct,  is  not  so  during  its  continuance,, ^v  ^  j^^j, 
the  tenant  in  tail  having  the  power  of  barring  it.(6)     But  where  Ab.  269. 
the  obligor  is  seised  of  a  reversion  in  fee,  expectant  on  a  mere(5^  KiHou  v. 
life  estate ',{7y  or  where  there  is  a  mortgage  for  only  a  term  q/"'^<"'e",Caiii . 
years,(8)  such  estates  are  considered  assets,  and  the   plaintiff 
will,  on  this  plea,  recover  in  his  action,  tliough   he  may  not  be  ' '')  ""''•  ^'' 
able  to  obtain  execution,  at  law,  against  the  land  of  the  obligor,  ciark,  2 
during  the  continuance  of  the  particular  estate  or  term.(9)     An  '^''^-  '^^*- 
advowson  in  fee,  in  gross,  is  also  considered  asassets,(10;  as  is  a('")  Ibid. 
rent  in  fee  out  of  land  before  belonging  to  the  heir,  though  the  ,g^  pl^^„\^^^ 
rent  becomes  extinct  by  the  (lescent.(ll)     Before  the  Statute  of  t*.  Pcnson, 
Frauds,  (22  Car.  2,  c.  3,)  estates /jer  autre  vi",  were  not  consider- "'''  ^^'l*'^* 
ed  as  assets  ;  but,  by  that  Statute  (sect.  12,)  they  are  made  so  (9)  Vide  Doe 
when  they  descend  to  the  heir  as  special  occupant ;  the  Statute,  7..vvi,;„.t°,nj  8 
however,  (sect.  11,)  provides  that  the  heir  in  such  case  shall  '  • '^''P- 2- 
not,  by  reason  of  any  kind  of  plea,  be  chargeable  to  pay  the  con-  n")  Co.Lit. 
demnation  out  of  his  own  estate,  but  execution  shall  be  sued  of'''*-  ''• 
the  whole  estate  so  made  assets  in  his  hands  by  descent,  in  whose  (ii)  ibid. 
hands  soever  it  shall  come  after  the  writ  purchased,  in  the  same 
manner  as  it  is  to  be  at  and  by  the  common  law,  where  the  heir 
pleads  a  true  plea. 

Another  case  which  the  defendant  might  set  up  at  the  com- 
mon law  to  defeat  the  plaintiff''s  demand,  and  which  will  still 
avail  him  in  an  action  against  him  as  heir,  is  where  the  obligor 
has  devised  to  him  an  estate  materially  different  from  that  which 
the  law  would  cast  upon  him  :  as  where  the  devise  is  in  tail, (12)  ('2)  Plouii, 
or  two  daughters  as  joint-tenants  in  fee,  instead  of  leaving  them 

to  take  as  coparceners. rl3)  But  if  the  devisee  take  the  same  es-(f^)^"?"- 
till  ^''"'  '^''z. 

tate  as  he  would  have  done  by  descent,  or  such  estate  subjected  421. 


•  The  defendant  might  pleail  this  di-sccnt  S))cci:<ll_v ,  and  then  at  tlie  i^nmrnon  law 
the  ])lHin!iff  ctmld  only  have  Jiidgmoit  of  ass  -Is,  rjaanclo,  &c.  Vide  KiUow  v.  Ro- 
den,  Carth.  129.  Smithy.  Angel,  2  /.(/.  Eaym.  784, 


598  ACTIONS  BY  AND  AGAINST 

Part  IF.     only  to  a  charge,(l)  as  where  the  testator  devises  to  executora 

^Te^on'"'' fo''  ^  term  of  years  in  trust  to  pay  debts,  and  then  to  hisheir,(2) 

specially,    or  charges  the  land  in  his  hands  with  his  debts, (3)  or  with  a  sum 

'  of  money  for  rent,(4)  the  law  considers  the  heir  as  in  of  his  bet- 

(1)  Reading    tcr  title,  and  the  action  may  be  maintained  in  the  common  form. 

T).  Rovston,  1  ,.      o 

Saik/242.  Before  the  Statute  of  4  &  5  AF.  &  M.  the  heir,  if  he  had  fairly 

f2")  Hedgei- T-  alienated  before  action  brought,  (for  covenous  alienations  vpere 
Rdwe, '2  Sti-a.  before  rendered  null  by  the  Stat.  13  Eliz.)(5)  might  defeat  the 
^'^''  ■  action  by  pleading  rie7is  iper  distent  at  the  time  of  commencing 

(S)  Allen*,     the  action.  Equity,  it  is  true,  gave  relief  to  the  creditor  ;(6)  but, 
Heber,ib.d.    ^^  ^^^jj  ^j^^  necessity  of  going  there,  the  Statute  4  &  5  W.  & 
(4)Clnike  v.  M.  c.  5,  s.  5,  enacted,  that  in  such  cases  the  heir  should  be  liable 
Rep.  72.        to  the  value  of  the  land  sold,  aliened,  or  made  over;  and  by  the 
6th  sect,  provided,  that  in  case  of  such  plea,  the  plaintiff  might 
reply  that  the  defendant  had  lands  from  his  ancestor  before  the 
^.^w"'!h"T    o^igi"^'  ^''■'t  brought,  or  bill  filed;  and  if  upon  issue  joined  there- 
P.  W,  777.    on,  it  should  be  proved  for  the  plaintiff,  the  jury  should  inquire  of 
the  value  of  the  lands,  &c.  so  descended.     The  plaintiff,  in  this 
case,  therefore,  must,  in  addition  to  the  evidence  of  seisin  and  des- 
cent, be  prepared  to  prove  the  gross  value  of  the  land,  and  not 
content  himself  with  the  general  judgment  which  he  would  be 
entitled  to  in  the  case  of  a  general  plea  of  Hens  per  discent ;  and 
(")  Jeffrey  v.  {{  ^^ig  should  be  omitted,  a  venire  de  novo  would  be  granted.(7) 
Mod.  18.        The  palintiff  TTifli/  reply  in  this  way  (to  a  plea  so  pleaded)  even 
,«^T,  1  .        if  the  defendant  has  not  aliened  the  land,  but,  by  so  doing,  he 

(8)  Redsliaw  •'  " 

7J.  Hester,      can  only  take  the  judgment  given  by  the  Statute,  viz.  against  the 

Carih.  354.     defendant  himself  to  the  value  of  the  land  proved  ;(8)  whereas, 

if  he  deny  the  plea  generally,  the  proceedings  are  the  same  as 

at  the  common  law,  without  any  reference  to  the  value  of  the 

.^•Lee'"'^"'  land.  (9) 

Barnes,  444.       If  the  defendant  truly  sets  forth  the  whole  of  the  lands  de- 
fio^  Rnsteii     scendedtohim,(lO)  the  plaintiff  then  takes  judgment  against  those 
172,  b.  173,  a  lands,  and  has  a  writ  of  inquiry  to  ascertain  their  yearly  value, 
and  the  defendant  is  not  personally  liable  ;  and  when  a  judg- 
ment has  been  recovered  against  the  obligor,  the  defendant  may 
plead  such  judgment,  or  payment  of  other  debts  of  equal  de- 
gree, before   the  commencement  of  the  plaintiflfs  action,  though 
no  judgment  obtained.  To  avail  himself,  however,  of  these  mat- 
ters, he  must  state   what  lands  in   certain  have  descended  to 
(U)  Buckley  him  ;(11)  and  as  the  plaintiff  replies,  the  issue  will  be  thrown  ei- 
r.  Nighiin-     ^j^gr  on  him  to  prove  lands  beyond  those  mentioned  in  the  plea 
6C5?  (as  to  which  we  have  only  to  refer  to   what  has   been  already 

said  respecting  the  evidence  on  the  general  plea  of  riensper  dis- 
cent,)  or  on  the  defendant  to  prove  the  fairness  or  payment  of 


HEIRS  A^B  DEVISEES.  QQQ 

the  former  debt,  as  to  which  it  may  be  sufficient  to  refer  toch.XIV.  s.4. 
observations  alreadv  made  in  treating  of  actions  against  execu- ■^'^''°"  "S*'""*!. 
tors.  It  may,  however,  be  here  observed,  that  as  a  judgment  not     devisees. 

docketted  is  not  binding  on  heirs,  the  plaintiff  may,  in  case  the  

defendant  pleads  a  judgment  outstanding  against   the  obligor 

reply  it  was  not  docketted.(l)  Slil^lVcis, 

Having  thus  considered  at  some  length  the  action  which  the&  Pui.  307. 
common  law  gives  against  the  heir,  it  will  not  be  necessary  to 
be  very  minute  in  treating  of  the  action  given  by  the  Statute  of 
the  3  &  4  TVill.  <§•  ^^d'  c.  14,  which  was  made  to  extend  the  be- 
nefits of  that  action  to  cases  where  it  would  be  defeated  by  the 
devise  of  the  debtor. 

That  Statute  (sect.  2.)  makes  all  devises  or  appointments  of 
lands,  rents,  profits,  term,  or  charge  out  of  the  same,  whereof 
the  testator  is  seised  in  fee-simple,  in  possession,  reversion  or 
remainder,  or  has  power  to  dispose  of  the  same  by  his  last  will 
and  testament,  fraudulent  and  void  as  against  bond  or  specialty 
creditors  ;  and  (sect.  3.)  enacts,  that,  in  such  case,  every  such, 
creditor  may  maintain  His  action  of  debt  on  his  bond  and  spe- 
cialty against  the  heir-at-law  of  the  obligor,  and  his  devisee  or 
devisees  jointly;  and  that  the  devisee  or  devisees  shall  be  liable 
and  chargeable  for  a  false  plea  in  the  same  manner  as  any  heir- 
at-law  should  have  been  for  any  false  plea,  and  for  not  confess- 
ing the  lands  or  tenements  to  him  descended ;  and  (sect.  7.) 
that  the  devisee  shall  be  liable  in  the  same  manner  as  the  heir- 
at-law,  notwithstanding  the  lands  devised  to  him  shall  be  aliened 
before  the  action  brought.  * 

Devises  or  charges  for  payment  of  any  real  or  just  debt  or 
debts,  or  any  portions  or  sums  of  money  for  children,  other  than 
the  heir-at-law,  according  to  or  in  pursuance  of  any  marriage 
contract  or  agreement  in  writing,  bona  fide  made  before  the  mar- 
riage, (by  sect.  4.)  are  saved  and  declared  to  be  in  full  force. 

In  this  case,  we  have  seen  the  action  must  be  against  the 
heir  and  devisee  jointly  ;  and  on  an  action  so  framed,  unless  the 
devisees  deny  the  devise,  the  plaintiff's  evidence  will  be  of  the 
same  nature  in  general  as  that  before  directed  in  the  case  of  an 
action  against  the  heir. 

In  the  construction  of  this  Act  it  has  been  holden,  that  an  es-  (2)  Westfai- 
tate  per  autre  vie  is  within  it,(2)  and  that  the  proviso  contained  ["nn^"^ 3  Xlk' 
in  the  4th  section  operates  in  favour  of  all  devises  for  payment  *'^^- 
of  debts,  though  out  of  the  rents  and  profits  only.(3)     In  case  of  (3)  piunkct 
such  devise  being  so  complicated  as  not  to  be  capable  of  being  ^^•^'^"*°"' 
carried  into  effect,  a  Court  of  Equity  would  (as  in  many  of  the 
other  cases  before  mentioned)  grant  relief,  but  a  Court  of  Law  ('^)j"|'|S'^'^^ 
could  not  take  notice  of  the  defect. (4)  52  iiro.  014. 


(  600  ) 


CHAP.  XV. 

OF  THE  EVIDENCE  IN  ACTIONS  AGAINST  OFFICERS   OF  JUSTICE. 

SECTION  I. 

Against  Sheriffs,  Bailiffs,  and  Gaolers' 

Part  II.         Officers  of  justice  are  often  liable  to  actions  for  irregular 

Act'il^ns      conduct  in  their  oflBcial  stations,  and  in  most  of  these  cases  the 

against  offi-   evidence  materially  differs  from  that  in  actions  against  common 

persons. (a) 
'  If  trespass  or  trover  be  brought  against  a  bailiff,  for  any  thing 

done  by  himself,  the  evidence  will  be  the  same  as  against  any 
other  person ;  but  as  the  Sheriff  seldom  does  any  act  in  per- 


(a)  The  mistake  in  the  addition  oi  place  is  not  a  ground  for  sustaining  an  action 
of  trespass  ag;.inst  an  officer  who  serves  an  execution  issued  on  such  judgment. 
Smith  V.  Boivker,  1  Muss.  Rep.  70. 

If  a  Sheriff  having  seized  wny  goods  on  an  execution  or  warrant  of  distress,  sell 
them  without  giving  the  notice  required  by  law,  he  is  a  trespasser  ab  initio,  and  as 
such  is  liable  to  the  owner  of  the  eoods.  Purriiigton  V.  LoHng,  7  Mass.  Rep.  388, 
Winslo-iV  V.  Same,  ibid.  392. 

No  action  will  lie  against  an  officer  for  not  returning  an  execution  after  the  same 
is  paid,  and  no  special  damage  alleged.  Libret  v.  Child  1  Root's  Rep.  264. 

If  the  Sheriff,  in  executing  a  writ  of  habere  facias  possessionem  against  a  man, 
turn  the  wrong  person  out  of  possession,  the  Court  will  grant  relief,  and  award  re- 
stitution.    Ex  parte  Reynolds,  1   Caines'  Ret).  500. 

An  action  of  trespass,  and  not  case  li-  s  against  a  Sheriff  who  serves  an  execution 
after  it  has  expired.   Fail  v.  Lewis  et  al.  4  Johns.  Rep.  450. 

Trespass  will  lie  against  the  Sherififor  the  act  of  his  deputy.  Estes  v.  WiUiams, 
Cooke's  Rep.  413. 

An  action  on  the  case,  (and  not  debt,)  will  lie  against  a  Sheriff  for  not  paying  to 
landlord  a  ye:<r's  rent  due  from  his  tenant,  ai^ainst  whom  the  Shtriff  had  levi'  d  an 
execution.  Byrd  v.  Cocke,  1  Wash.  Rep.  297.  S.  P.  Governor  v,  Edwards,  i 
Bibb's  Rep.  219. 

An  action  of  assumpsit  will  lie  against  a  Sheriff  for  the  amount  of  money  received 
on  an  execution,  but  the  narr.  oiij;ht  to  he  sufficiently  special  to  apprise  thi^  defend- 
ant of  the  nature  of  the  action.  O'oerton  et  ux,  v.  Hudson  exr.  2  Hash.  Rep.  222. 
Isom  v.  Johns,  2  JMnnf.  Rep.  272.    Chichester  v.  Vans,  1  Call's  Rep.  99. 

A  Sheriff  is  liable  to  the  action  ol  the  party  at  common  law,  for  not  executing 
and  returning  the  process  of  the  Court. 

As  to  an  action  against  a  deputy  by  his  principal,  vide  Halcomb  v.  Floumey,  2 
Call's  Rep.  433.  Ronald  v.  Jientlaj  et  al  ^  H.  &  Munf.  Rep.  461.— Am,  Ed. 


ACTIONS  AGAINST  SHERIFFS  AND  BAILIFFS,  601 

son,  he  must  be  connected  with  the  bailiff,  before  the  acts  of  the  Ch.  XV.  s.  i. 
latter  can   be  evidence   to  charge  his  superior.     In  this  case,     T^^^^^^'J^jfj. 
therefore,  the  plaintitFmust  first  give  in  evidence  the  warrant  of    lor  taking 
the  defendant,  either  by  calling  the  bailiiFto  produce  it,  or  else       ^°"^  ^' 
by  proving  that  it  has  been  returned  to  the  Sheriff's  office  ;  and 
then,  after  proving  notice  to  produce  it,  a  copy  or  parol  evidence 
may  be  given  of  it.*     To  obtain  this  evidence,  it  will  be  neces- 
sary to  serve  the  bailiff  with  a  subpoena  duces  tecum,  or  common 
subpoena,  accompanied  with  a  notice,  as  well  as  to  give  notice 
to  the  Sheriff.     Proof  that  the  person  who  committed  the  tres- 
pass was  the  general  bailiff  of  the  defendant,  and  had  given  a 
bond  of  indemnity  to  him,  will  not  be  sufficient  to  connect  him 
with  the  particular   transaction. (1)(6)      The    foundation  being (i)  Drake  r-. 
thus  laid,  the  Sheriff  is  civilly  answerable  for  all  the  acts  of  his  7^-*^^'    "[I'g^ 
bailiff,  and  proof  that  he  seized  the  person  or  goods  of  ^.  under 
an  execution  against  B.  will  support  the  action  against  the  She- 
riff ;(2)   for  though  the  authority  has  not  been  strictly  followed  (2)  Sanderson 
by  the  bailiff,  yet  when  once  the  Sheriff  has  constituted  him  bai- omaek'sss. 
liff  for  that  particular  service,  he  is  civilly  answerable  for  all  Ackwoith 
trespasses  or  mistakes  committed  by  the  bailiff  in  the  supposed  Dongi.  40.' 
or  pretended  execution  of  it.(c) 

•  This  is  the  only  regular  evidence  of  a  warrant ;  but,  in  some  instances,  where 
the  original  writ  has  been  produced,  and  the  name  of  ihe  officer  has  been  endorsed 
thereon  by  a  person  in  the  Sheriff's  office,  this  has  bet-u  deemed  sufficient.  See 
JBlach  V.  Archer,  Cowp.  63  ;  and  Jl'JVeil  v.  Perchard,  1  Esp  263. 

The  JVm  Prius  decisions  of  different  Judges  on  this  point,  however,  have  been 
by  no  means  uniform  ;  but  all  seem  to  have  agreed  that  the  name  of  a  particular 
officer  being  endorsed  on  the  writ  is  not  sufficient  proof  of  such  officer  having  been 
duly  authorised  to  act  under  it  without  clear  evidence  that  such  endorsement  was 
raade  by  the  under  Sheriff,  or  some  person  ordinarily  employed  in  his  office  to  grant 
■warrants  or  writs,  and  for  the  purpose  of  denoting  that  a  warrant  was  granted  to  the 
officer  so  named.  In  lome  of  the  cases  the  point  has  been  raised  on  an  office  copy 
of  the  writ  being  produced,  but  it  should  seem  that  this  secondary  evidence  could 
only  arise  'on  the  production  of  the  writ  itself,  when  the  hand  writing  itself  could 
be  spoken  to.  The  reader  who  wishes  to  consult  the  cases,  is  referred  ti>  JTartin 
V.  Bell,  1  Starh.  413.  Hill  v.  Lei£-h,  I  Holt,  215.  Morgan  v.  Bridges,  2  Stark. 
314.  Tealby  v.  Gascoigne,  2  Stark.  202.  Hill  v.  Sheriff  of  Middlesex ,  7  Taimi.  8. 

As  to  declarations  or  acknowledgments  of  the  under  Sheriff  or  bailiff,  they  do  not 
seem  to  be  admissible,  except  as  part  of  the  act  done  by  them  at  the  lime.  Vide 
ante,  39. 

(6)  The  return  of  a  person  styling  himself  deputy  Sheriff,  is  not  evidence  against 
the  principal,  unless  it  be  shewn  tliat  such  person  is  deputy  Sheriff.  Slaughter  v. 
Barnes,  3  Marsh.  Rep.  413. — Am.  Kd. 

(c)  In  Massachusetts,  an  action  of  trespass  vi  et  armis,  lies  against  a  Sheriff,  for 
the  act  of  the  deputy.  Grinnell  v.  Phillips,  1  Mass.  Rep.  530, 
4H 


60S  ACTIONS  AGAINST 

Piirt.  II.         In  actions  brought  against  Sheriffs  or  their  bailiff's  tor  seizing 

caii'srsheViff'*^^  goods  of  One  man  under  an  execution  against  those  of  ano 

for  taking    ther,  the  most  usual  defence  is,  that  the  goods  were  fraudently 

^°^  ^'       assigned  to  the  plaintiff"  by  the  third  person,  for  the  purpose  of 

afsigrments.  defeating  the  execution  of  a  creditor.(rf)     In  this  case  the  sale  is 


So  a  Sheriff  is  answerable  civiliter  for  the  misfeasance  or  nonfeasance  of  his  de- 
puty, in  the  duties  required  of  him  by  law.  Marshall  v.  Hosmer,  4  Do.  60. 

A  Sheriff  is  not  answerable  for  any  neglect  of  his  deputy  to  fulfil  an  undertaking 
mi  rely  personal,  although  such  undertaking  be  within  the  duties  of  his  office.  JVa- 
ter house  v.  Waite,  I"  JMass.  Rep.  '207 . 

But,  if  a  deputy  umler  colour  of  ofRce,  do  what  the  law  prohibits,  the  Sheriff  ia 
answerable.   Bond  v.  JVard,  7  Do.  123. 

So  the  deputies  of  a  Sheriff,  are  all  servants  of  the  Sheriff,  and  the  possession  d 
any  deputy  by  virtue  of  an  attachment,  is  the  possession  of  the  Sheriff.  Watson  et 
al.  V.  Todd  et  al.  5  Mass.  Rep.  271    Perky  v.  Foster,  9  Do.  112. 

In  Connecticut,  writs  <li-livere(l  to  the  Sheriff,  may  be  executed  by  \i\s  general  ov 
special  deputy.    Clark  v.  Bray,  Kirb   Rep.  240. 

In  JVevj  York,  a  civil  action  «ill  lie  againsi  a  Sheriff  for  the  extortion  of  the  de- 
piity,  whether  he  recognised  the  act  of  his  deputy  or  not.  Jil'Ititire  v.  Trumbull, 
7  Johns.  Rep.  2,5. 

Iti  Pennsylvania,  bailiffs  Ave  sup])lied  by  deputy  ^her'iSs  whose  authority  is  shewn 
by  proof  of  a  general  privity  v.  ith  tin  Sheriff;  and  the  ShenfiF  is  answerable  for  the 
acts  of  his  deputy,  whether  he  should  recognise  and  adopt  his  acts  or  not.  Hazard  v  ■ 
Israel,  1  Binn.  Rep.  240. 

In  a  suit  on  Sheriff's  recognisance  against  the  Sheriff  and  sureties  for  his  suffering 
a  person  in  custody  under  an  exeiulion  to  escape,  the  insolvency  of  such  person  at 
the  time  is  not  evidence.  Wolverton  v.  The  Commoniveulth,  6  Serg-.  £if  R.  Rep.  273. 

In  Virginia,  it  has  been  ruled  that  the  Siieriff  al  common  law  is  alone  answerable 
for  the  acts  of  his  deputy.  White  v.  Johnson,  1  Wash.  Rep.  201.  S.  P.  ^rinislead 
V.  Marks  et  ul.  ibid.  421. 

So  an  action  of  trespass  will  lie  against  a  Sheriff  for  the  conduct  of  his  deputy. 
James  v.  .1/'  Cubbin,  2  CaWs  Rep.  273.  5'.  P.  Estes  v.  Williams, Cooke's  Rep.  413. 

An  action  lies  againsi  a  Sheriff,  for  the  tortious  act  of  his  deputy.  Moore  v.  Davi- 
ney,  3  //.  ij  Munf.  Rep.  127. 

In  South  Carolina,  a  Sheriff  was  held  liable  for  the  acts  of  his  deputy,  and  all 
persons  acting  under  him  in  every  subordinate  capacity.  Teasdale  ?.  Hart,  2  Bay's 
Rep.  \75.  S.  P.  Smith  v.  Hart,  ibid  395. 

All  7/nder  Sheriff  may  depute  a  i)erson  to  serve  a  writ,  or  do  a  particulrsr  act. 
Hunt  v.  Burrel,  5  Johns.  Rep.  137. 

A  writ  of  inquiry,  to  ascertain  the  amount  of  damages,  may  be  executed  before  a 
deputy  of  the  Sheriff.   Tillotson  v.  Cheethum,  2  Johns.  Rep.  63. 

So  a  deputy  Sheriff  may  execute  a  writ  of  ad  quod  damnum.  Gay  v.  Caldwell, 
Hardin's  Rep.  63.  S.  I'.  H'roe  v.  Harris,  2  Wash.  Rep.  126. 

In  A'orth  Carolina,  a  return  of  the  service  of  a  writ  made  by  a  deputy  Sheriff 
was  held  good,  it  being  the  immemorial  custom  of  the  State  to  receive  their  returns. 
M'Murphey  v.  Campbell,  1  Hayiv.  Rep.  181.— Am.  Ed. 

[d)  If  a  vendor  of  goods  continue  in  possession  of  them  after  the  sale,  such  pos- 
session is  so  far  evidence  of  fraud,  that  it  will  avoid  the  sale  as  to  third  persons. 
JPutnam  v.  Dutch,  8  Mass.  Rep.  287. 

Possession  of  goods  by  the  vendor  after  sale,  is  at  most  on\y  prima  facie  evidence 
of  fraud.  Barroiv  v.  Paxton.  5  JoJms.  Rep.  272.  S.  P.  Beak  v.  Guernsey,  8  Do 
446. 


SHERIFFS  AND  BAILIFFS.  603 

fraudulent  and  void,  as  against  such  creditor;(e)  but  in  order  toCh.  XV.  s.  i. 
make  it  appear  that  he  stands  in  that  relation,  the  defendant    ijj'jgj'gljg^jj^ 
must  prove  a  copy  of  the  judgment  as  well  as  of  the  execution  ;  "  for  taking 
but  had  the  party,  against  whom  the  writ  issued,  been  plaintiif,       ^"^  *" 
a  copy  of  the  writ  only  would  have  been  sufficient(l)(/)  assignment. 

These  cases  have  arisen  upon  the  Statute  13  Eliz.  c.  5,  which  

enacts,  "  that  all  and  every  feoifuient,  grant,  alienation,  bargain  (i)  Mania 
and  conveyance  of  lands  and  tenements,  hereditaments,  goods ggJJ,|52Q'3i 
and  chattels,  by  writing  or  otherwise,  and  all  and  every  bond, 
suit,  judgment  and  execution  had  and  made  for  any  intent  or 
purpose  before  declared,  (viz.  to  delay,  hinder,  or  defraud  cre- 
ditors and  others  of  their  just  and  lawful  actions,  suits,  debts, 
&c.)  shall  be  taken  (only  against  them  whose  action,  &c.  by  such 
covenous  practice  is  disturbed,  delayed  or  defrauded,)  to  be  void; 

The  general  rule,  with  regard  to  tlie  assignment  of  personal  chattels,  is,  that 
where  the  deed  contains  an  absolute  immediate  assignment,  it  is  necessary  that  pos- 
session should  accompiiny  and  follow  it,  botli  at  common  law,  and  under  the  Stat. 
13  Eliz.  Wilt  V.  Franklin,  1  £inn.  Rep.  521.  Daiues  v.  Cope,  4  Do.  2.58.  JVagev 
V.  Miller,  4  Serg.  &  R.  Rep.  123.  Clniv  v.  Woods,  5  Do.  ^7S.  Et  vide  Croft  v. 
Artlier,  3  Dessaus.  Rep  229.  S.  P.  Hodges  v.  Blount,  1  Hiiyiu.  Rep.  414.  Ingles 
\.  Donaldson,  2  Do.  57.  Vick  v.  Kegs,  ibid.  136. 

The  not  taking  possession  imnn^diately  of  goods  conveyed  by  a  bill  of  sale,  is  not 
of  itself  fraud,  but  evidence  only  of  fraud,  and  may  be  accounted  for  by  evidence. 
Falkner  v.  Perkins,  ibid.  224. 

When  fraud  will  be  presumed.  Den  ex  d.  Bell  v.  Hill,  1  Haij~v.  Rep.  95.  Cox 
V.  Jaekson,  ibid.  423. 

Whether  trespass  will  lie  against  a  constable,  by  a  third  person  whose  property 
was  taken  in  execution  on  a  warrant  against  one  wlio  had  possession  of  the  pro- 
perty ?  Hall  V.  Moor,  Mddis.  Rep.  576. — Am.  Ed. 

(e)  Conveyances  made  (o  defeat  creditors,  are  void  by  the  common  law,  as  well 
as  by  Statute.   Sands  et  al.  v.  Cod-wise  et  al.  4  Johns.  Rep.  536. 

Fi-aud  is  a  question  of  law,  especially  where  there  is  no  dispute  about  facts  ;  it  is 
thejuilgment  of  law  on  facts.  Stnrtevant  v.  Ballard,  9  Johns.  Rep.  337.  Sed  vide 
Smith  V.  JYiel,  Hawk's  Rep.  241.  Trotter  v.  Howard,  ibid.  320.— Aji.  Ed. 

(_/)  In  an  action  of  trespass  by  a  stranger  against  a  Sheriff  {'or  seizing  goods  un- 
der a  writ  of^ei-i  facias,  ihe  Sheriff  \n  (jrder  lo  justify  must  produce  the  judgment 
as  well  as  the  writ.   High  v.  Wilson,  2  Johns.  Rep.  46. 

But  if  the  Court  be  satisfied  there  was  fraud,  and  that  the  plaintifTis  not  entitled 
to  recover,  thtv  will  not  award  a  new  tri:d  after  a  verdict  for  the  defendant,  though 
the  record  of  the  judgment  should  not  have  been  pi-oduced  at  the  trial,  ibid. 

In  a  similar  action  brought  by  an  officer,  who  had  seized  goods  under  an  execu- 
tion, against  a  third  person  for  taking  them  away,  it  was  held  that  the  posstssion  of 
the  officer  by  virtue  of  the  execution,  was  sufficient  to  enable  him  to  maintain  tres- 
pass or  trover,  and  that  pi'oof  of  the  seizure  by  virtue  of  the  execution  was  sufficient, 
without  producing  the  <  xeculion.  Barker  v.  Knapp,  6  Johns.  Rep.  195.  Vide 
Jenner  v.  Jolliffe,ibid.  9. 

An  inquisition  on  a  claim  of  property  to  goods  taken  in  execution,  is  not  a  justifi- 
cation to  the  officer,  but  goes  only  in  mitigation  of  damages.  Toiimsend  v.  Philips, 
10  Johns.  Rep.  98.— A.m.  Ed. 


604  ACTIONS  AGAINST 

Part.  Ti,      and  every  pretence,  colour,  feigned  condition,  expressing  of  use 
again's'isT.eriff'^'*  **^'^^''  matter  or  thing,  to  the  contrary  notwithstanding:  Pro- 
for  taking    vided,  it  shall  not  extend  to  any  estate  or  interest  in  lands,  te- 
gows-       nements,  goods  or  chattels,  had,    made,  conveyed,  or  assured 
assignmenis.  "po^^  good  consideration,  and  bonajide  to  any  person  not  having 
at  the  time  of  such  conveyance  or  assurance,  notice  of  such  co- 
vin, fraud,  or  collusion." 
Twine's  case,      Ttvine's  case,  which  is  referred  to  in  all  others  as  the  leadin«^ 

3  Co.  80,  .  '^ 

case  on  this  Statute,  occurred  soon  after  the  passing  of  it,  viz. 
in  the  24th  Elizabeth;  there,  Jl.  being  indebted  to  B.  in  400/. 
and  to  C.  in  200/.  C.  brought  an  action  of  debt,  and  pending  this 
action  Ji.  made  a  secret  conveyance  of  all  his  goods  to  B.  in  sa- 
tisfaction of  his  debt,  but  continued  io  possession,  sold  some  of 
the  goods,  set  his  mark  on  some  of  the  sheep,  shore  others,  and 
acted  to  all  intents  and  purposes  a*  the  owner  of  the  goods.  On 
this  case  the  grant  was  held  to  be  fraudulent  as  against  C.  and 
not  within  the  proviso,  for  though  for  a  good  consideration  it  was 
not  bona  fide ;  and  Lord  Coke,  in  reporting  this  case,  advises 
his  readers  thus :  "  Where  any  gift  shall  be  to  you  in  satisfaction 
of  a  debt,  by  one  who  is  indebted  to  others  also,  1st.  Let  it  be 
made  in  a  public  manner  and  before  the  neighbours,  and  not  in 
private,  for  secresy  is  a  mark  of  fraud  :  2d.  Let  the  goods  and 
chattels  be  appraised  by  good  people  to  their  very  value,  and 
take  a  gift  in  particular  in  satisfaction  of  your  debt :  3d.  Pre- 
sently after  the  gift  take  possession  of  them,  for  continuance  in 
possession  by  the  donor  is  a  sign  of  trust." 

But  though  it  may  be  taken  as  a  general  rule,  that  the  conti- 
nuing in  possession  is  strong  evidence  of  fraud,  yet  such  is  not 
Bui.  N,  P.     universally  the  case.     As  if  A.  lend  mone.y  to  B.  to  enable  him 

258,  cites  Cas. 

K.  B.  287." 

*  I  find  no  such  ciise  in  12  31od.  which  is  the  book  generally  cited  as  Cas.  K.  B, 
it  is  probable  the  author  intended  to  refei-  to  Bachnal  v.  Royston,  Prec.  in  Chan- 
cery, 287,  wliich  is  cited  by  him  when  delivering  his  judgment  in  Edwards  v.  Ilar- 
ben,  2  T.  jRep.  517.  "  There  one  Brerver,  liaving  shipped  a  cargo  of  goods,  bor- 
rowed of  the  plaintiff  GOO/,  on  bottomry,  und  at  tiie  sanne  time  made  a  bill  of  sale  of 
the  goods,  and  of  the  produce  and  advaiitise  thereof,  to  the  plaintiff".  Sir  Edward 
Nole  cited  a  case,  [Smallcomd  v.  Buckingham,  vide  post,)  where  a  man  took  out 
execution  against  another  by  agreement  between  them,  the  owner  was  to  keep  pos- 
session of  them  upon  certain  trrms,  an'l  afterwards  anotherobtained  judgmentagainst 
the  same  man,'and  took  the  goods  in  execution,  and  it  was  held  tliat  he  might,  and  that 
the  first  execution  was  fraudulent  and  void  against  any  subsequent  creditor,  because 
•  here  was  no  change  of  the  possession  and  no  alteration  ofilie  property;  and  he  said 
it  had  been  ruled  forty  tiir.es  in  his  ex]tei-ience  at  Guildhall,  that  il'a  man  sell  goods 
ami  still  continaes  in  possession,  as  visibleowncrof  them,  such  sale  is  fraudulent  and 
void  as  to  creditors,  and  that  the  law  has  been  always  so  held.  The  Lord  Chancel- 
lor held,  in  the  principal  case,  that  the  trust  of  these  goods  appeared  upon  the  very 
bill  of  sale,  that  though  they  were  sold  to  the  plaintiffs,  yet  they  trusted  Brewer  to 


SHERIFFS  AND  BAILIFFS.  gQj 

to  purchase  goods,  and  at  the  same  time  take  a  bill  of  sale  of  ch.  XV.  s.  i. 
them  for  securing  the  money  ;  here,  the  very  intent  of  the  trans-     T'^'^p'**'.., 

^.1111  •         ji  •  1-        against  Sheriff 

action  being  that  B.  should  have  the  possession,  there  is  nothing    for  taking 

fraudulent  in  such  possession  being  continued  by  him.  goods. 

So  where  Ji.  being  in  debt,  an  execution  issued  against  his  afs^gnmems. 

goods,  and  they  being  put  up  to  sale,  a  friend  of  Jl.  became  the ^ 

purchaser,  and  took  a  bill  of  sale  of  the  Sheriff',  but  permitted  ./5.  Kidd  v. 

to  continue  in  possession,  who  afterwards  executed  another  bill  \^''i"''i"\°"»,„ 
^1  !•  1-11  .        2  B.  &  P.  59. 

of  sale  to  C.  another  creditor  under  which  he  took  possession, 

it  was  held  that  the  iirst  bill  of  sale  was  valid,  and  that  the  per- 
son to  whom  it  was  made  might  recover  against  C,  the  value 
of  the  goods  sold  by  him.     And  in  another  case,  where  the  hus-  Leonard  v. 

°  .      .  .  .  Baker  1  AI. 

band  of  the  p!aintiff''s  mother  assigned  his  effects  to  trustees  &  s.  251;  see 
for  the  benefit  of  his  creditors,  and  absconded,  leaving  his  wife ^'^° ^^""^^ 
in  possession  of  his  house  and  goods,  and  notice  of  the  assign-e  East,  25:' 
ment  being  advertised  in  the  public  papers,  the  goods  were  af- 
terwards sold  by  public  auction,  and  the  plaintiff  having  pur- 
chased them,  removed  some,  but  permitted  his  mother  to  remain 
in  possession  of  the  greatest  part  of  them.     It  was  also  held, 
that  this  possession  was  not  fraudulent,  so  as  to  entitle  a  credi- 
tor who  did  not  come  in  under  the  deed  to  take  them  in  execu- 
tion.    In  these  cases  it  will  be  seen  that  the  transaction  was 
open  and  notorious,  and  the  possession  was  not  inconsistent  with 
the  declared  intention  of  the  parties.* 


negotiate  and  sell  them  for  their  advantage,  and  Bveiuer''s  keeping  possession  of 
them  was  not  to  give  a  false  credit  to  hira  as  in  the  other  cases  wliieh  had  been 
cited,  but  for  a  particular  purpose  a^'reed  upon  at  the  time  of  the  sale."  Mr.  J. 
BuLLF.R  had  before  observed,  that  "  in  cases  where  the  possession  was  by  the  terras 
of  the  deed  to  remain  in  the  vendor  till  a  future  time,  or  till  some  condition  was 
performed,  his  continuance  in  possession  until  that  time  or  until  (hat  condition  was 
performed,  was  not  fraudulent,  because  such  poss -ssion  was  consistent  with  and  ac- 
companied and  followed  the  deed  :"  and  after  citing  the  above  case,  added,  "  So 
that  the  Chancellor  in  that  case  proceeded  on  the  distinction  I  have  taken  ;  he  sup- 
ported the  deed  because  the  want  of  possession  was  consistent  with  it."  In  the  case 
r>i  Edwards  V .  Harben,  the  bill  of  sale  was  absolute,  and  a  formal  possession  was  de- 
livered, but  the  vendee  verbally  agreed  that  the  vendor  should  remain  in  possession 
for  fourteen  days,  and  on  account  of  this  incongruity  it  was  held  to  be  void  as  against 
creditors. 

•  Many  cases  have  occurred  on  settlements  made  between  husband  and  wife;  the 
most  modern,  and  which,  on  account  of  its  great  importance  in  point  of  value  was 
the  most  discussed,  was  that  of  Deway  v.  Jiaynton,  6  East,  25".  The  circum- 
stances of  that  case  are  too  complicated  to  admit  of  a  mere  abstract  principle^  but 
the  case  itself  is  too  important  to  be  passed  over  without  reference.  It  is  thus 
abridged  by  Mr.  East:  "  One  who  had  a  life  interest  in  a  setth-d  estate  of  his  wife 
(both  of  whom  were  aged)  of  at  li:ast  3,000/.  a-year,  whereof  the  ultimate  reversion 
on  failure  of  issue  male  (of  which  there  was  none)  was  in  her,  and  having  furniture 


606  ACTIONS  AGAINST 

Part  II.         Another  class  of  cases  which  may  be  here  noticed,  are  those 
extordon!^    vvhere  a  man  being  indebted  to  one  creditor,  and  apprehending 
-  process  at  his  suit,  gives  a  judgment  or  other  security  to  another 

creditor,  for  the  purpose  of  enabling  him  to  recover  his  debt. 
This,  if  really  done  for  the  purpose,  and  not  with  a  view  of  him- 
self benefiting  by  the  transaction,  will  not  be  considered  as  frau- 
dulent within  the  Statute,  but  be  good  against  the  other  credi- 
tor, though  expressly  for  the  purpose  of  defeating  his  execution. 
Thus,  where  A.  being  sued  by  a  creditor,  confesses  a  judgment 
^1)  Holbird     to  another  creditor,  for  a  debt  bona  fide  due  to  him,(l)  or  for 
5  T.  R.  235.'  such  a  sum  as  will  cover  all  his  debts,  directing  a  rateable  pro- 
portion  to  be  made,(2)  or  assigns  his  effects  to  trustees  for  the 
Howell,         like  purpose,  which  trustees  take  possession  accordingly,(3)  the 
*East,  1.       creditor  who  first  sued  his  debtor  cannot  afterwards  levy  the 
{3)Pickstock  effects    on  the  ground  of  the  executions  being   fraudulent  as 
r.  Lyster,        no-ainst  him 

Another  injury  committed  by  the  ojB&cer,  for  which  the  She- 


and  pictures,  &c.  in  his  mansion  of  not  less  tiian  8,000/.  value,  being  pressed  by  his 
creditors,  in  pursuance  of  an  agreement  with  his  wife,  conveys  all  his  property 
to  trustees  (who  had  married  his  daughters)  for  the  benefit  of  his  wife  and  daugh- 
ters, and  subject  to  his  wife's  future  appointment,  in  consideration  whereof  his  wife 
discharged  himof  above  3,000/.  before  raised  on  the  estate,  principally  for  hisuse,  and 
enabled  the  trustees  to  raise  out  of  her  estate  12,000/.  more  for  the  benefit  of  her 
husband's  creditors,  but  subject  to  the  appointment  of  him,  his  executors,  Sec.  and 
also  covenanted  to  levy  a  fine,  which  was  levied  a  year  afterwards,  and  the  husband 
covenanted  to  deliver  an  inventory  of  the  goods  to  the  trustees  within  six  months, 
which  was  not  done  ;  and  after  the  conveyance  the  husband  continued  to  use  the 
furniture,  &c.  in  the  house,  as  before,  and  was  soon  afterwards  sued  by  several  of 
the  creditors,  whose  executions  again&t  such  goods  were  satisfied  by  him  without 
setting  up  the  trust  deed  or  resorting  to  the  trust  fund,  but  money  was  raised  on  it 
afterwards  for  other  creditors  ;  and  above  two  years  after  the  deed  the  husband 
being  sued  by  the  plaintiff",  a  creditor  before  that  time,  the  trust  deed  was  set  up  in 
bar  of  the  levy  upon  the  goods  in  the  house,  and  the  Sheriff  returned  nulla  bona. 
And  upon  an  action  brought  for  a  false  return,  held,  that  in  the  consideration  of  the 
question,  whether  this  was  a  bona  fide  transaction,  or  a  contrivHnce  to  defeat  credi- 
tors, and  therefore  void  at  common  law,  or  by  the  Stat.  13  EMz.  C-  5,  it  is  material 
to  submit  to  the  jury  the  relative  value  of  propertv  withdrawn  fi'om  the  reach  of 
the  creditors,  in  proportion  to  the  amount  of  their  demands  at  the  time,  and  the 
value  and  tangibibility  of  that  substituted  in  its  place,  in  aid  of  the  conclusion  that 
the  deed  was  covenous  against  them  ;  and  therefore  a  verdict  for  the  plaintiff, 
founded  principally  on  those  concomitant  circumstances,  1st.  the  previous  embar- 
rassment of  the  husband  ;  2d.  the  want  of  notoriety  of  the  conveyance  at  the  time  ; 
3d.  the  word  of  an  inventory ;  4th.  (he  continuance  of  the  husband's  poss>-ssion, 
though  consistent  with  the  deed,  yet  without  notice  of  the  change  "f  property  ;  and 
5lh.  the  appropriation  by  the  husband  of  a  pait  of  the  money  raised  by  the  trustees 
to  his  own  use,  without  objection,  was  set  asid--,  and  a  new  trial  granted  to  bring  the 
question  more  fully  before  the  Court  and  jury,  as  to  the  good  faith  of  the  transac- 
tion, and  the  value  of  the  consideration,  and  its  availability  to  the  creditors. 


SHERIFFS  AND  BAILIFFS.  QQ>y 

riff  is  civilly  liable  to  make  amends  to  the  party,  is  that  of  ex-Ch.  XV.s.  i. 
tortion,  which  is  punished  by  several  Statutes.     By  the  Stat.  29    tnorUon! 

JSliz.  c.  4,  certain  fees  are  given  to  Sheriffs  for  levying  execii- 

tions  ;  and  by  the  32  Geo.  2,  c.  28,  various  other  provisions  are 
made  to  prevent  the  oppression  of  indigent  defendants  by  the 
rapacity  of  bailiffs.     If  a  bailiff  offend  against  the  Statutes,  the 
party  injured  has  his   election  either  to   sue  him   or  the  She- 
riff,(l)  but  he  cannot  recover  penalties  against  both  for  the  same  C*)^""*'?*'^ 
offence.(2)     If  he  sue  the  Sheriff,  he  must  in  general  prove  the  2  T.  Rep.  us' 
writ,  warrant,  and  misconduct  of  the  bailiff:  but  if  the  Sheriff ^2>  peshaliT 
has  returned  the  writ,  and  the  extortion  appear  on  the  face  Layton  and 
of   his    return,  the  warrant  is  unnecessary.*     The   same  evi-  ibidlVfa.' 
dence  should  be  given  in  the  action  against  the  bailiff.     One  of 
the  offences  enumerated  in  the  latter  Act  of  Parliament,  is  tak- (3)  Jacques t: 
ing  more  than  by  law  is  allowed  for  waiting  till  bail  is  given,  lEsp.  C^s'. 
for  which  a  penalty  of  fifty  pounds  is  inflicted  ;  but  it  has  been  |^^-  . 
holden,  that  no  action  can  be  maintained  for  this  offence,  vvith-sude,2Bos, 
out  proving  a  regular  table  of  fees,  settled  in  pursuance  of  thatp  ^"''J^' 
Act,  which,  I  believe,  has  never  yet  been  done.(3) 

Yor  false  return  of  mesne  process,  the  declaration  generally  j^j^J^gJ'^^^"^ 
states  the  plaintiff's  cause  of  action  ;  that  a  writ  issued  and  was  process 
delivered  to  the  defendant,  and  that  the   defendant  either  did 
take  the  debtor,  and  afterwards  permitted  him  to  escape  ;  or 
else  that  he  might  have  taken  him,  but  did  not,  and  returned  non 
est  inventus.(g)     In  this  case,  therefore,  the  first  evidence  will 


*  If  the  judgment  be  stated  in  the  declaration  lie  mast  also  prove  that.  Savage 
V.  Sviith,2Black.  1101. 

(_§•)  If  a  SheiiflTsell  goods  upon  an  execution,  without  legally  advertising  the  sale, 
he  is  liable  to  an  action  on  the  case  for  a  false  return,  but  not  in  an  aciion  of  trover 
brought  by  the  judgment.   Creditors  of  lAvermore  v.  Bayley,  3  Masn.  Rep.  487. 

An  action  on  ihe  case  for  a  false  return  will  lie  against  an  officer  who  had  an  op- 
portunity to  levy  an  execution  in  his  hands,  on  ihe  body  or  property  of  the  debtor) 
and  did  not  do  so  ;  and  in  such  a  case  the  return  of  nulla  and  non  est  inventics  would 
be  a  false  return,  j^rost  v.  Ijiigal,  1  Day\t  Jiep.  128. 

In  debt  on  replevin  bond,  evidence  is  not  admissible  to  contradict  the  ShcrifTs 
return  of  elongatur.  Pldlips  v.  Hyde,  1  Dcdl.  Rep.  439. 

Where  the  law  requires  the  retniri  of  an  officer  to  be  in  writing,  the  whole  of  the 
return  must  be  in  writing,  and  parol  evidence  will  not  be  admitted  to  contradict  or 
explain  it.  Datis  v.  JMaynard,  9  Mass.  Rep.  242.  Piirringtoii  v.  Lonvg,  6  Bu. 
388.   Winslo-w  v.  Loring,  7  Do.  392.    Weld  v.  Barttett,  10  Do.  470. 

The  retuin  ol  a  SiierifTupon  a  precept  is  conclusive  evidence  against  any  person 
of  the  facts  returned,  in  any  question  as  to  the  eflect  of  it.  Bott  v.  Burnell,  9  Do. 
96.  Estabrooh  v.  JJafigood  exr.  10  Bo.  313.  Slayton  v.  T/ie  Inhab.  of  Chester, 
4  Do  478.  Bott  V.  Burnell,  11  Do.  163. 

When  goods  sufficient  to  cover  the  debt,  &c    are  levied  upon,  the  defendant  is 


608 


ACTIONS  AGAINST 


Part  ir. 

False  return 

of  mesne 

prdcess. 


(1)  Alexander 
■V.  M'Cauley, 
4T.  Rep.  611. 

(2)  Sloman 
V.  Home, 
2  Esp.  695. 

(3)  Blalch 
v.  Archer, 
Cowp.  63. 

(4)  Gibbon 
V.  Coggan,  2 
Campb.  189. 


(5)  Tempest 
r.  Linley, 
Clayt.  34. 

Escape  on 
mesne  pro- 
cess. 


be  the  plaintiff's  cause  of  action,(l)  in  the  same  manner  as  if  the 
action  were  against  the  original  defendant,  and  therefore  his  ac- 
knowledgment will  be  admissible, (2)  next  the  writ  and  return* 
by  an  examined  copy  of  the  original,  filed  of  record,  which  is 
sufficient  evidence  of  the  writ  itself,  and  of  its  delivery  to  the 
Sheriff;  then,  the  warrant  to  the  officer,  in  the  same  manner  as 
in  the  former  instance  ;  and,  lastly,  either  that  the  defendant  was 
once  in  the  custody  of  the  bailiff,  or  of  his  follower  in  his  pre- 
sence,(3)  and  escaped  from  him ;  or  else  that  notice  was  given 
to  the  Sheriff,  under-sheriff,  or  bailiff,  where  the  defendant  was, 
and  that  he  might  have  been  arrested  had  the  officer  thought 
proper  to  have  taken  him.  But  notice  to  the  agent  in  London 
of  a  country  under-sheriff  will  not  be  sufficient.C4)  In  order  to 
shew  the  amount  of  the  damages  which  he  has  sustained,  the 
plaintiff  should  also  prove  the  circumstances  of  the  defendant  at 
the  time  of  the  arrest,  and  that  he  has  since  absconded,  or  be- 
come insolvent,  for  if  the  defendant  were  originally  in  bad  cir- 
cumstances, or  he  may  be  met  with  every  day,  and  the  plaintiff 
has  not  in  fact  been  injured  by  this  negligence  of  the  defendant, 
the  damages  will  be  merely  nominal. (5) 

If  the  Sheriff  make  a  return  of  cepi  corpus,  and  the  ground  of 
complaint  be  that  he  had  not  the  defendant  forthcoming  at  the 
return  of  the  writ,  the  plaintiff  must  prove  his  debt,  the  writ  and 
return,  which,  admitting  the  caption,  renders  the  warrant  unne- 
cessary.(A)  He  must  then  prove  that  the  defendant  was  at  large. 


discharged,  even  though  the  Sheriff  should  waste  the  goods.    jMdd\.  Blunt,  % 
Mass.  Rep.  402. 

Cepi  mortuis  est,  will  be  a  sufficient  return,  witliout  saying  inprisona.     Christie 
V.  Goldsborough,  \  H.  &  M^Hen.  Rep.  540. — Am.  En. 


•  In  Webb  v.  Heme  and  another,  1  Bos.  &  Pul.  281,  where  the  declaration  for 
an  escape  on  mesne  process  alleged  that  the  writ  was  endorsed  for  bail,  by  virtue  of 
an  affidavit,  &c.  the  Court  held,  that  the  affidavit  should  be  proved,  and  that  the 
produclion  or  proof  of  the  wiit,  whereon  the  sura  was  endorsed,  was  not  sufficient 
proof  of  this  substantive  allegation.  But  if  it  had  only  said,  endorsed  for  bail  for  so 
much,  then  it  would  not  have  been  necessary  ;  and,  in  the  other  case,  an  examined 
copy  would  be  sufficient.     Vide  Bui.  JV.  P.  14. 

(A)  If  the  Sheriff  have  a  surplus  remaining  in  his  hands  arising  from  a  sale  on  an 
execution,  the  Court  will  order  it  to  be  paid  over  on  a  Jieri  facias  issued  at  the  suit 
of  another  plaintiff.  Ballv.Ryers,3  Caines^  Rep.  Si.  Vide  Williams  v.  Rogers, 
5  Johns.  Rep.  163. 

But  where  the  Sheriff  has  money  in  his  hands  which  belonged  to  the  plaintiff 
levied  on  an  execution  issued  by  him,  and  afterwards  an  execution  at  the  suit  of 
another  against  such  plaintiff  is  lodged  in  his  hands,  he  cannot  levy  on  the  goods 
and  chattels  in  his  hands,  by  virtue  of  the  first  execution.  Turner  v,  Fendell,  X 
Cra?ich's  Rep.  117.    Vide  ante  note  to  p,  389. 


SHERIFFS  AND  BAILIFFS.  (JOg 

Or  in  improper  custody  after  the  return  of  the  wrU,{\)  that  no  bail  Cd.  XV.  s.  i. 
above  was  out  in,  and  that  bv  these  circumstances  he  has  been    Escape  on 

r  '  "  I.  .         ,  mesne  pro- 

injured  ;  for  where  a  Sheriff's  officer  kept  a  defendant  in  his  cus-        cess. 


Where  the /frs<  execution  Was  levied  on  whcHt  "rowins:,  and  before  it  became  \„',f  ,7. ," 

.  '  ,      -  .      IO48.  Vide 

ri|)e  or  w.ss  sold,  a  second  execution  was  levied,  it  was  ht-lu  that  Ihc^rsi  execution  i^ji^jugo,,  ^, 

retained  its  priority.   fV/ii/iple  v.  Foot,  '2  Johns.  Rep.  41 8.  Mattcson, 

The  purchaser  succeeds  10  all  the  interest  of  the  original  lessee  in  the  crop  sown.  2T.  Kep.  Ir2. 
Stewart  v.  Doughty  et  al.  'J  Johns    Rfp.  108. 

Bank  shares  and  shares  in  a  public  library  cannot  be  seized  and  sold  under  an 
execution,  ibid. 

An  equity  of  redemption  may  be  seizt^d  and  sold  under  s^Jieri  facias,  against  a 
mortgagor  in  possession.   Waters  et  al.  v.  Stewart,  1  JV*.  York  Cus.  in  Er.  47. 

Contra  in  JV.  Carolinu.  JlUisoii  v.  Gregory,  1  j\fiirph.  Rep.  333. 

And  in  Kentucky.   Thomas  v.  Marshal,  Hardin's  Rep.  19. 

In  Pennsylvcmia,  under  the  Act  ot  1705,'  (I  Sm.  L.  57,)  all  possible  titles,  coa- 
tingent  or  otherwise,  in  lands  where  there  is  a  real  interest,  may  be  taken  in  execu- 
tion, Humphrey's les.  v.  Humphreys,  1  Yeales'  Rep.  4'27.  Hurst  v.  Lithgoio,  2  Do.  24. 

An  action  on  the  case,  will  lie  for  levying  but  part  of  the  del)t  where  there  were 
goods  for  the  whole.  JMaccubbin  v.  Thornton,  I  H  &  JVI'Hen.  Rep.  194. 

Where  a  defendant  in  execution,  and  admitted  to  the  liberties  of  the  gaol,  walked 
beyond  the  limits  knowingly  and  voluntarily  on  pretence  of  avoiding  a  bank  of  srow 
which  obstructed  his  usual  walk,  it  was  held  to  be  an  escape,  and  the  Siieriff  liable 
therefor.  Bisselly.  Kip,  5  Johns.  Rep.  89.  Vide  Tillman  \.  Lansing,  i  Johns. 
Rep.  45.  Peters  \.  Henry,  6  Johns.  Rep.  121,  on  the  same  subject. 

Where  a  defendant  inadvertently  and  without  any  intention  to  escape,  went  to 
a, house  supposed  to  be  within  the  limits,  but  which  was  really  out  of  the  limits,  it 
was  still  held  to  be  an  escape.  Bissell  v.  Kip,  5  Johns.  Rep.  89. 

Contra.  Jansen  v.  Hilton,  10  Johns.  Rep.  549.  S.  P.  Bary  et  ul.  v.  JMandellet  al. 
ibid.  563. 

A  voluntary  return  before  suit  is  brought,  is  not  a  defence  in  an  action  for  aa  es- 
cape, whether  negligent  or  voluntary,  on  mesne  process,  after  the  return  of  the 
writ.  Stone  v.  Woods,  5  Johns.  Rfp.  182. 

If  the  Siieriff,  after  an  arrest  on  mesne  process,  have  the  body  of  the  defendant 
at  the  return  day  of  the  writ,  it  is  sufficient,  ibid. 

Where  a  constable,  after  having  arrested  a<lefendaiit  on  a  warrant,  issued  by  a 
justice  of  the  peace,  let  him  go  on  his  promise  to  fullow,  and  afterwards  on  the  con- 
stable's going  back  to  lake  him,  he  is  prevented  in  consequence  of  the  defendant 
being  arrested  by  ihe  Sheriff  on  othrr  process,  it  is  an  escape.  Olnistead  \.  Ray- 
mond, fi  Johns.  Rep.  62. 

In  Comiecticut,  a  prisoner,  who  escapes  on  ;in  execution,  may  be  retaken  at  any 
place.  Ho-wardv.  Lyon,  I  Root's  Rep.  107.    Mel,  Sheriff  v.  Byvank,  2  Do.  174. 

A  voluntary  return  of  a  prisoner,  alter  an  escape,  is  ecjuivalent  to  a  recaption,  on 
fresh  pursuit,  and  if  before  action  brought,  will  excuse  the  Sheriff.  Drake  et  al.  v. 
Chester,^  Con.  Rep.  473. 

After  a  voluntary  escipe  by  a  defendant  in   execution,  the  Sheriff  cannot  after- 
wards r>  take  or  detain  him,  without  a  new  authority  from  the  plaintiff.  Lansing  v.  / 
JPfeef,  2  Johis.  Cus.  3. 

Nor  will  the  voluntary  return  or  assent  of  the  prisoner  prevent  his  liability  for 
the  escape,  ibid. 

But  on  a  negligent  escape,  the  Sluriff  may  lawfully  retake  or  detain  the  defend- 
ant, ibid- 

So,  if  a  person  surrendered  by  his  bail,  an.d  who  has  not  been  charged  in  execu- 
tion, escapes,  debt  will  not  lie.  il/id. 
4  I 


610  ACTIONS  AGAINST 

Paitll.     tody  some  time  after  the  return  of  the  writ,  and  then  took  hiri, 
fait."re"urn^of^"  prison,  yet  as  the  plaintiff  was  not,  in  fact,  delayed  or  injur 
fieri  tacias.    ed,  the  action  was  holden  not  to  be  maintainable.(l)     This  ac- 

■ tion  is  generally  brought  where  the  defendant  has  been  permit- 

O^r'""'^'     ted  to  go  at  large  without  a  bail  bond,  and   the  Court  will  not, 

Anrlerson,5     .  ,°  °  ,  i-  ,        i    r       i 

T.Rep.57.  in  such  a  case,  stay  the  proceedings  upon  the  defendant  putting 
fl  Full  ^'^  '^^'^  '^^^  ^^^  ^^^^  putting  in  such  bail,  after  the  expiration  of 
Pipst,  7T.  the  term  in  which  the  writ  is  returnable,  afford  any  defence 
i'^lauhet"^  to  the  action  commenced  before  ;(3)  but  if  the  defendant  in  the 
1  Bos.  8c  Piii.  original  action  do,  in  fact,  put  in  and  perfect  bail,  or  having  put 
in  bail   render  himself  in  their  discharge  before  the  time  for 

(3)  Moses  r^.  bringing  in  the  body  is  expired,  the  action  is  not  maintainable, 
Mauie'k  Sel- ^^^^""o'^  ^'^  bail  bond  has  been  taken.(4) 

wjn,3Dr.  In  an  action  for  a  false  return  of  the  writ  of  fieri  facias,  the 

(4)  Pariente  plaintiff  must  prove  examined  copies  of  the  judgment,  writ,  and 
oVr'""i^S7^ '■^turn,  and  give  evidence  of  the  warrant,  as  in  other  cases.  He 
35.  must  then  prove,  that  the  debtor  had  goods  within  the  county 

and  that  due  notice  was  given  to  the  defendant,  or  his  bailiff, 

of  them.     If  the  property  of  the  goods  is  alleged  to  be  in  a  third 

person,  and  the  Sheriff  be  indemnified  by  him  to  return  nulla 

bona,  the  plaintiff  must  also  be  prepared  to  prove  the  property 

to  be  in  the  original  defendant,  by  shewing  acts  of  ownership 

by  him,  or  other  conduct  inconsistent  with  the  claim  which  is 

set  up. 

combtl.Biick-     ^"^  general  the  goods  of  the  debtor  are  bound  from  the  time  of 

inghum,  Saik.  delivering;  the  writ  to  the, Sheriff :  but  if  the  plaintiff,  or  his  at- 

Ra%m.  251,    torncy,  give  directions  to  the  Sheriff  not  to  levy  till  a  future 

S.'C.  Bradley  Jay,  and  in  the  mean  time  another  writ  be  delivered  to  the  She- 

i  Wils.  44.     I'iff.  the  plaintiff  loses  his  priority;  and  the  Sheriff  should  levy 

Kempiand      q^j  ^j^g  gecond  writ.(5)     In  this  case,  therefore,  the  Sheriff  may 

v.  M'Caulev,  ,        r.  .1  1  •  , 

Peake's  N.  P.  return  nulla  bona  on  the  first  writ,  and  support  his  return  by 
^^-  proving  the.  fact.     So  if  a  trader  has  committed  an  act  of  bank- 

(6)  Cooper  ruptcy  before  the  writ  was  delivered  to  the  Sheriff,  or  being  in 
1  Btm"20.  Prison  foi'  debt  at  the  time,  remain  there  so  long  afterwards  as 
Chippendale  to  make  up  two  months,  and  a  commission  issue  against  him  ;(6) 
Bui  N.  P-4i.^'^'^  by  relation  devests  him  of  all  property  from  the  first,  and 

III  an  action  for  an  escape  on  mesne  process,  if  the  plaintiff  ha%'ing  real  and  suffi- 
cient security  from  the  defendant  for  his  debt,  relinquish  it  after  the  knowledge  of 
the  escape,  the  Sheriff"  mny  avail  himself  of  the  fact  in  mitigation  of  damages.  Rus- 
sel  V.  Turner,  7  Johm.  ReJ).  18'J. 

All  action  of  Je6«  for  an  escupe  lies  against  a  Sheriff,  only  where  (he  defendant 
hud  been  in  execution  on  a  ca.  sa  therefore,  w  here  a  defendant,  who  is  surrendered 
by  his  hail  escapes,  the  proper  remedy  is  Hn  netioa  on  the  case.  Vim  Slijck  v.  Hoge- 
boom,  6  Johns.  Rep.  270. — Air,  Eu. 


SHERIFFS  AND  BAILIFFS.  Q^^ 

the  Sheriff  must  not  proceed  to  sell,  though  he  had  in  fact  le-ch.  XV.  s.  i. 
vied  the  goods.     Here  also  the  Sherift'  must  return  nulla  bona,  ^'^^'"'^  foree- 

,..,  i-jii-rt-  J  r     J  ,        cape  of  one 

and  give  evidence  or  the  dinerent  tacts  necessary  to  support  the  in  txecudon. 

commission,  viz.  the  trading,  act  of  bankruptcy,  &c.(i)  

Where  the  action  is  brought  against  a  Sheriff  for  the  escaj)e 
of  one  in  execution,  the  plaintiff  may  declare  in  debt ;  and  if  the 
Sheriff,  having  returned  cepi  corpus,  afterwards  permitted  the 
defendant  to  escape,  the  plaintiff  must  prove  copies  of  the  judg- 
ment, writ,  and  return.(A:}     But  if  the  escape  were  from  the  bai 


(i)  Where  a  judgment  is  recovered  against  a  bankrupt,  who  has  obtained  his 
certificate,  for  a  debt  due  before  the  bankruptcy,  and  execution  is  delivered  to  the 
Sheriff  who  neglects  to  serve  it,  the  creditor  will  recover  only  nominal  damages. 
Selfridge  v.  Lithgoio,  2  Mass.  Rep.  374.  Sed  vide  Governor  v.  Matlock,  I  Jfaivk's 
Sep.  425. 

If  an  officer  delay  to  serve  a  writ  delivered  to  him,  and  by  reason  of  such  delay 
any  damage  or  loss  accrue  to  the  creditor,  the  officer  is  answerable  for  it.  Barnard 
et  al.  V.  Ward,  9  Mass.  Rep.  269.— Am  Ed. 

Action  for  escape. 

(A?)  Where  an  action  against  a  Sheriff  arises  pardy  from  a  matter  oi  record,  and 
partly  from  msMer  in  pais,  in  different  counties,  the  plaintiff  may  bring  his  action 
m  either  county.  Marshall  v.  Hosmer,  3  Mass.  Rep.  23. 

Whether,  in  an  escape  from  prison  in  one  county  from  an  execution  founded  on  a 
■(Udgment  obtained  in  another  county,  be  not  such  a  substratum  as  makes  the  action 
local  where  the  judgment  is  not  recorded,  or  whether  the  county  where  tlie  escape 
happens,  be  not  the  proper  county  for  the  venue  ?  Bogert  et  al.  v.  Ilildreth,  1 
Caines'  Rep.  I . 

If  the  Sheriff  permit  a  debtor  who  has  been  surrendered  by  his  bail,  in  a  civil  ac- 
tion, and  by  the  Court  committed  to  the  custody  of  the  Sheriff,  logo  at  large,  before 
the  expiration  of  thirty  years,  he  will  be  chargeable  for  an  escape,  though  he  were 
not  furnished  with  a  copy  of  the  order  of  Court  committiag  such  debtor.  Randall 
T.  Bridge,  2  Mass.  Rep.  549. 

If  a  defendant  in  execution,  upon  bonds  goes  out  of  the  limits  without  the  know- 
ledge of  the  Sheriff,  it  is  a  negligent  escape.  Jones  v.  Sheriff  Abbe,  I  Root^s  Rep. 
106.  Abel  V.  Bennet,  ibid.  127. 

The  nominal  plaintiff  in  ejectment  cannot  maintain  an  action  against  a  Sheriff  for 
the  escape  of  the  defendant  commitled  for  the  damages  and  costs  recovered  in  the 
ejectment.    Chipman  v.  Sawyer,  2  Tyl.  Rep.  61. 

A  Sheriff  as  keeper  of  the  prison,  to  which  is  committed  a  debtor  from  another 
county,  is  not  liable  for  the  negligent  escape  of  such  debtor,  ibid. 

An  action  of  debt  will  not  lie  against  the  administrators  of  a  Sheriff  for  an  escape 
in  the  life-time  of  the  intestate.  Martin  v.  Bradley  et  al.  1  Cai7ies'  Rep.  124. 

If  a  coroner,  having  an  execution  against  a  deputy  gao'er,  arrest  him,  and  the 
Sheriff  be  not  at  the  gaol,  nor  any  keeper  authorised  by  him,  thi:-  coroner  by  leav- 
ing his  prisoner  at  the  gaol  is  discharged,  and  the  Sheriff  iuffering  him  logo  at 
large,  is  guilty  of  an  escape.   Colby  v.  Satnpon,  5  Mass.  Rep.  310. 

An  action  of  the  case  on  debt  lies  -against  an  officer,  for  an  escape,  whether  negli- 
gent or  voluntary.  Colby  v.  Sampson,  5  Mass.  Rep.  310.  Appleby  v  Clark,  10 
J)o.  59. 

It  is  not  an  escape  for  a  Sheriff  to  bring  up  on  a  habeas  corpus  ad  testijicanflum 


Q^2  ACTIONS  AGAINST 

Part  II.     lift' before  the  return,  and  the  writ  remain   unreturned  in  the 
Action  fo<-«-sheriff"s  hands,  the  writ  itself  may  be  produced.     The  plaintiff 

cape  ot  one  '  j  i  r 

in  execution,  sbould  also  in  this  case  prove  the  warrant,  to  shew  that  at  the 

time  the  debtor  escaped  from  the  bailiff",  he   was  invested  with 

•Sedvide         that  character.     If  the  debtor,  being  in  the  County  gaol,  was 
Archer,  charged  with  a  writ  of  execution,  by  lodging  it  with  the  fcherift', 

Cowp.  63.  j|.  ^^.ju  jjp  necessaiy  to  prove  the  fact  of  his  so  being  in  custody, 
at  the  time  of  the  delivery  of  the  writ;  and  to  avoid  the  difficul- 
S&  9  W.  3,  ty  which  might  otherwise  arise  in  this  case,  it  is  by  Stat.  8  &  9 
**  '*'  ■  W.  3,  enacted,  "  That  if  an}'' person  or  persons  whatsoever  de- 
siring to  charge  any  person  with  any  action  or  execution,  shall 
desire  to  be  informed  by  the  marshal  of  the  King's  Bench,  or 
warden  of  the  Fleet,  or  their  respective  deputy  or  deputies,  or 
by  any  other  keeper  or  keepers  of  any  other  prison  or  prisons, 
whether  such  person  be  a  prisoner  in  his  custody  or  not,  the 
said  marshal  or  warden,  or  such  other  keeper  or  keepers  of  any 
other  prison  or  prisons,  shall  give  a  true  note  in  writing  thereof 
to  the  person  so  requesting  the  same,  or  to  his  lawful  attorney, 
upon  demand  at  his  office  for  that  purpose,  or,  in  default  thereof, 
shall  forfeit  the  sum  of  fifty  pounds  ;  and  if  such  marshal  or 
warden,  or  their  respective  deputy  or  deputies  exercising  the 
said  office,  or  other  keeper  or  keepers  of  any  other  prison  or  pri- 
sons, shall  give  a  note  in  writing  that  such  person  is  an  actual 
prisoner  in  his  or  their  custody,  every  such  note  shall  be  ac- 
cepted and  taken  as  a  sufficient  evidence  that  such  person  was 
at  that  time  a  prisoner  in  actual  custody." 
Westby's  j,^  cases  where  the  prisoner  was  in  custody  of  a  former  She- 

72.  '  '  riff,  the  assignment  of  the  prisoners  made  by  him  to  the  defen- 

dant hhould  also  be  proved  ;   for  the  Sheriff"  is  only  chargeable 
with  such  prisoners  as  are  assigned,  unless  he  come  into  office 
on  the  death  of  the  old  Sheriff',  in  which  case  he  must  take  no- 
tice of  all  prisoners  in  the  gaol  at  his  perif;'** 
SeeTurnpr         If  the   action  be  brought  against  the  marshal  of  the  King's 
Bos  &'^Pid     Bench  or  warden  of  the  Fleet,  the  plaintiff"  must  prove  the  debt- 
456,  and  cases  or  to  have  beeu  regularly  committed  to  his  custody  by  the  Court, 

thci-e  cited 

Wiglev  

t!.  .f'nes.  ;. 

5  East,  440.      a  prisoner  in  custoily  on  execution  in  a  civil  suit,  to  testify.  J\'oble  v:  Smith,  5  Johns. 

Hep.  35". 

A  coroner  having  an  e.xecuiion  against  a"  Sheriff,  is  bound  to  confine  hina  in  somp 

place,  aiid  if  he  give  him  to  the  deputy  gaoler,  who  permits  him  to  go  at  large,  it  is 

an  escape.  Day  et  al.  v.  Brett,  C  Johns.  Rep.  '22. 

The  actual  escape  form?  the  gist  of  the  action,  and  it  is  to  be  presumed  negligent 

or  voluntary,  unless  it  be  proved  to   be  a  tortious  escape,  and  fresh  pursuit  was 

made.  .Johnson  v.  ^Macon,  1  Wash.  Hep.  5.    Et  vidcflboe  v.  Tebbs  etux.  1  J\luvf. 

Sep.  501.— Am.  Ed. 


SflEKIFFS  AND  RAILIFFS.  g^g 

whicbj  in  cases  of  execution,  it  should  seem,  can  only  be  done  by  ch.  XV.  s.  i. 
oroviii"-  an  examined  copy  of  tlie  commiUilur  entered  of  record;  Action  for  es- 
but  where  the  debtor  is  committed   on  a  habeas  corpus  charged  ;„  expcmion. 
with  mesne  process,  the  production  of  the  habeas    corpus  itself,   ■ 
with  the  Judge's  commitment  annexed  to  it,  is  sufficient  evi-  W..tson 
dence  of  such  commitment,  it  being  also  proved  that  notice  of  ^,,11,"  272'. 
it  was  given  to  the  defendant  by  entering  a  memorandum  of  it 
in  the  book  kept  by  him  for  that  purpose. 

When  a  defendant  is  in  custody  of  the  marshal,  and  is  to  be 
charged  with  a  King's  Bench  execution,  a  rule  is  obtained  for 
the  marshal  to  acknowledge  the  defendant  to  be  in  his  custody 
and  he  is  committed  upon  such  acknowledgment.  In  this  case, 
therefore,  it  would  be  proper  to  prove  such  acknowledgment  on 
the  trial ;  but  if  he  be  in  custody  of  the  warden  of  the  Fleet,  and 
is  to  be  charged  with  a  Common  Pleas  or  Exchequer  writ,  a  ha- 
beas corpus  is  obtained,  the  return  to  which  proves  the  fact  of 
his  being  in  custody. 

Having  thus  established  the  fact  of  the  prisoner  being  in  the  Hawkins 
defendant's  custody,  the  plaintiff  must  next  prove   the  escape TJj''°™,'ir/o 
from  it,  by  evidence  of  the  debtor  having  been  afterwards  seen  ' 
at  large  ;  and  in  this  case,  whether  his  escape  were  before  or  af- 
ter the  returji  of  the  writ,  the  Sheriff  is  equally  liable  to  an  ac- 
tion.    He  cannot  permit  him  to  be  out  of  his  own  custody  for  a 
moment,  and  even  where  after  the  arrest  the  bailiff  suffered  the  (i)  Benton 
defendant  to  go  about  on  tv/o  different  days,  in  company  with^-  ^""?"'    . 

I  Bos.  &  Pul, 

his  follower,  for  the  purpose  of  enabling  him  to  settle  his  affairs,  24. 
it  was  holden  to  be  an  escape.(l)     So  where  a  bailiff  of  a  liberty  ^'^"^* 
having  arrested  the  defendant,  delivered  him  into  the  County  (2)  Bnnthman 
gaol,  this  was  determined  to  be  an  escape.(2)     The  evidence  ofg;„!^^"'^,'"|^ 
the  escape,  as  well  as  that  of  the  custody,  is  rendered  much  more  H>  p.  5'. 
easy  by  the  before-mentioned  Statute  of  8  &  9  fn/l.  3,  which^&9W.  3, 
enacts,  "  That  if  the  marshal  or  warden,  or  their  deputies,  or  the*^'  "  '  ^' 
keeper  of  any  prison,  after  one  day's  notice  in  writing  for  that 
purpose,  shall  refuse  to  shew  a  prisoner  committed  in  execution, 
to  the  creditor  or  his  attorney,  such  refusal  shall  be  adjudged  an 
escape." 

The  defendant  may  put  the  plaintiff  to  the  proof  of  all  these 
facts  by  the  plea  of  7iil  debet.  He  may  also  plead  that  the  es- 
cape was  against  his  will,  and  that  he  made  fresh  pursuit  and 
retook  the  prisoner  before  the  commencement  of  the  plaintiff's8&9  W.  5, 
action  ;  but  before  such  plea  is  received,  affidavit  must  be  made*""  '^^• 
by  the  gaoler  that  the  prisoner  escaped  without  his  consent  or 
privity.     This  plea  may  be  pleaded  to  an  action  charging  a  vo- 


'I 


614  ACliO.\«  AGALNSl 

Part  II.  iuntary  escape, (1)  lor  the  plaintiff  may,  on  such  a  count,  give 
cape  of  one"  evidence  of  a  negligent  escape,  and  if  it  appear  that  theprisonet 
in  execution,  escaped  from  the  rules  of  the  King's  Bench  prison  without  the 

marshal's  knowledge,  that  will  not  falsify  the  plea.     The  defen- 

*'\vTk*°"^  dant  may,  also,  where  the  escape  has  been  against  his  will,  plead 
2 T.  Rep.  126.  and  give  in  evidence  that  the  prisoner  returned  into  his  custody 
before  the  commencement  of  the  action,  which  is  equivalent  to 
a  retaking  by  him,  but  in  this  case  it  nnust  appear,  that  the  pri- 
soner remained  in  custody  till  the  commencement  of  the  plain 
tiff's  action  ;  and,  therefore,  where  the  defendant  pleaded  gene 
rally  that  the  prisoner  returned,  and  that  the  defendant  did  there- 
upon then  and  afterwards  keep  and  detain  him,  and  the  replication 
traversed  the  keeping  and  detaining  modo  et  forma,  and  the 
plaintiff  proved  that  the  prisoner  again  escaped,  and  died  out 
(2)  Chambers  ^f  custody,  the  Court  held  that  he  was  entitled  to  a  verdict.  (2)(/) 

■y.  Jones,  11  ^,       ,  .        ,  .  .  ,  ^  c        -c 

East,  406.  The  law  in  this  case  is  extremely  severe  on  gaolers,  tor,  it 

.  P  ..  the  prisoner  cannot  be  retaken  on  a  fresh  pursuit,  no  excuse  is 

Duke  of  Nor- admitted  but  the  act  of  God,  or  the  King's  enemies.  The  de- 
T^'^^'^zsa  struction  of  his  prison  by  a  riotous  mob,(3)  the  secret  escape  of 
an  alien  from  his  custody, (4)  or  a  rescue  from  his  officers,  while 
KyiesTlL*  obeying  the  commands  of  a  habeas  corpus,(5)  furnish  no  de- 
Bl.  108.  fence  to  this  action,  though  no  actual  negligence  is  imputable 
(5)  O'Neil       to  him. 

-f'.  Marson,         The  plaintiff  is,  in  this  action,  entitled  to  recover  all  money 

which  is  due  to  him  from  the  prisoner ;  and,  therefore,  the  cir- 

^m  \"^io%    cumstances  of  the  defendant  are  not  material  to  be  proved. (6)(«?) 

md  2  T,  Rep. 

!26. '  ~ 

(/)  In  an  action  of  escape  against  a  Sheriff,  he  may  avail  himself  of  the  plea  that 
the  Court,  who  rendered  the  judgment,  on  which  execution  issued,  possessed  no 
jurisdiction.  Austin  v.  Fitch,  I  RooVs  Rep.l^^. 

Or  that  the  process  was  void,  or  thai  the  execution  was  not  warranted  by  the 
judgment.  Albee  v.  Ward,  8  Masi.  Rep.  79.— Am.  Ed. 

(in)  In  an  action  on  the  case  against  a  Sheriff  for  the  escape  of  a  debtor  committed 
on  original  process,  the  jury  have  a  discretion  in  assessing  the  damages  whieh  the 
plaintiff  has  sustained,  and  are  not  bound  to  find  for  him  his  whole  debt.  Burrell  y. 
Jjithgo~M,  2  j\lass.  Rep.  526. 

Where  an  officer  neglects  to  return  a  writ  through  mere  casualty,  the  actual  in- 
jury the  plaintiff  lias  sustained  by  the  neglect  must  be  the  measure  of  damages.  Ha- 
milton V.  Marsh,  2  Tyl.  Rep.  403. 

In  Connecticut,  it  was  decided  in  an  action  for  an  escape  in  execution,  that  the 
debtor  was  poor  and  unable  to  pay  the  debt,  is  no  reason  for  abating  the  damages. 
^      Clark  V.  Litchfield,  Jurb.  Rep.  325. 

In  S.  Carolina,  in  an  action  of  escape  on  mesne  process,  where  the  damages  are 
unascertained,  the  jury  may  give  what  is  just  and  reasonable  though  it  be  less  than 
ilie  demand,  as  in  case  of  insolvency,  kc. ;  but  if  tlie  escape  be  from  a  ca.  sa.  the 


StIERIl!"FS  AND  BAILIFFS.  Q^Q 

Another  injury  which  a  person  may  sustain  by  the  tortious  or  cii.  xv.  s.  i. 
negligent  act  of  the  Sheriff  or  his  deputies,  and  for  which  the  jf^ingln^'llt-- 
ilaw  gives  an  action,  is  the  taking  insufficient  sureties  on  grant-  ticiem  sijre- 
ing  a  replevin  of  a  distress  for  rent.     The  Statute  11  Geo.  2,  c.  '''"''  '"^■J^^^''' 

19,  s.  23,  enacts,  that  all  Sheriffs  and  other  officers,  having  au-  __„ 

thority  to  grant  replevin,  shall,  in  any  replevin  of  a  distress  for 
rent,  take  from  the  plaintiff,  and  two  responsible  persons,  as 
sureties,  in  their  own  names,  a  bond  in  double  the  value  of  the 
goods  distrained,  conditioned  for  prosecuting  the  suit  with  effect 
and  without  delay,  and  for  duly  returning  the  goods  and  chat- 
tels distrained  in  case  a  return  shall  be  awarded. 

For  a  neglect  of  duty  in  this  particular,  the  Sheriff,  under- 
sheriff,  and  replevin  clerk  are  all  liable  ;(1)  and  a  bailiff  who  (i)  Richards 
makes  cognisance  may  maintain  the  action,  as  well  as  a  person  Biacl"  °22or 
who  is  the  actual  landlord. (2) 

In  order  to  sustain  this  action,  the  plaintiff  should  prove  the  Earner,  IB. 
several  facts  averred  in  his  declaration  ;  viz.  the  taking  the  dis-  f«P378, 
tress,  the  replevin  made,  the  bond,  and  the  insufficiency  of  the 
sureties. 

The  replevin  will  be  proved  by  the  Sheriffs  or  replevin  clerks; 
precept  or  warrant,  as  formerly  directed  when  speaking  of  exe- 
cutions, &c.;  and  the  bond  by  the  subscribing  witness.  At  one 
time  slight  evidence  of  the  insufficiency  of  the  sureties  appears 
to  have  been  considered  sufficient  ;(3)  but  modern  decisions  have  (3)  Saunders 
much  narrowed  the  liability  of  Sheriffs  in  this  particular;  and  it]^,j,  n!'i\'60. 
is  now  held,  that  if  the  sureties  taken  by  the  Sheriff  are  of  ap- 
parent responsibility,  he  is  not  answerable  to  the  landlord, 
though  he  neglected  to  inquire  into  their  actual  sufficiency,(4)  so  (4)  Hindal  v. 

Bladps,  5 
, a Taunt.  225, 

debt  of  the  defendant  becomes  the  debt  of  the  SherifF.  Smith  v.  Hart,  2  Bay''s  Rep 
395. 

In  an  action  for  an  escape,  and  false  return  of  jnesne  process  against  a  SherifF,  the 
plaintiff  can  recover  no  more  than  he  could  have  recovered  in  the  original  action  ; 
nor  ought  he  to  recover  more  than  he  has  actually  lost  in  consequence  of  the  escape; . 
Potter  V.  Lansing;  1  Johns.  Rep.  214. 

If  in  an  action  for  an  escape,  the  delendant  declares  in  debt,  he  can  recover  the 
amount  of  \.\\^  judgment  only,  but  if  he  declares  on  the  case  for  damages,  he  may 
recover  interest,  and  all  he  has  lost  by  the  escape.  Ra^utun  v.  Dole,  2  Johns.  Rep. 
454. 

\n  Pennsylvania,  \n  an  action  of  trespass  against  a  Slierifi"  for  the  misconduct  of 
his  deputy,  the  jury  may  award  exeviplary  damages.  Hazard  v.  Israel,  1  Jiinn. 
Rep.  240. 

However,  in  Virginia,  in  an  action  against  a  Sheriff  for  levying  on  wrong  goods, 
the  Court  said  (he  dainages  should  not  be  vindictive,  but  mcrelv  compiusatuiy  for 
the  loss  susiainf-d.  Anderson  v.  Fox,  2  H.  &  Mvvf.  Rep.  245. 

In  an  action  for  a  rescue  of  a  defen<lant,  it  is  incumbent  or,  the  plaintiff  to  prove 
his  debt.    Law  v.  Jltrvaier,  2  Root's  Rep.  72. — Am,  E:», 


616  ACTIONS  AGAINST 

Part II.     that  some  evidence  should  be  adduced  to  shew  either  that  tite 

takh!-°"ir!sui.  S'i^''^ff  ^^^  his  officer  actually  knew  of  the  insufficiency  of  the 

fitient  surf-  Sureties  ;  or  that  their  habits  of  life  were  so   low,  or  their  insol- 

^'^^'        yency  so  notorious,  as  must  necessarily  have  raised  a  suspicion 

*""""""""  of  their  sufficiency  in  his  mind. 

There  have  been  some  dijfferences  of  opinion  as  to  the  extent 
(1)  Geav.  of  the  Sherift"'s  liability  in  this  case.  The  Court  of  King's  Bench 
Lifiibiidge,  in  two  instances,(l)  and  the  Common  Pleas  in  one/S'*  determin- 
Wiiki-son  cd  that  he  was  only  liable  to  the  value  of  the  goods  distrained; 
w.  M'Cauley.  but  in  another  case,  the  latter  Court  held  that  he  was  liable  to 

the  extent  of  the  penalty  m  the  bond. 

« ^  ^J^"* ""'       On  principles  somewhat  similar  to  the  last,  is   the  action 

2H.  B.547.   founded  on  the  Statute  8  JJnne,  c.  14,  s.  1,  which   enacts,  that 

no  goods  or  chattels  upon  any  messuages,  lands,  or  tenements, 

leased  for  life,  term  of  yeai's,  at  will,  or  otherwise,  shall  be  lia- 

Action  for      |j|g  ^q  jje  taken  by  virtue  of  an  execution,  on  any  pretence  what- 

sellmg  without  •'  .  .  .        .  , 

paying  the      soever,  unless  the  part^  at  whose  suit  the  said  execution  is  sued 

landlord's  ^^^^  before  the  removal  of  such  goods  from  oft' the  said  premises 
by  virtue  of  such  execution  or  extent,  pay  to  the  landlord  of  the 
premises,  or  his  bailiff",  all  such  sums  of  money  as  are  due  for 
rent  for  the  said  premises  at  the  time  of  such  taking  of  the  goods, 
provided  the  arrears  of  rent  do  not  amount  to  more  than  one 
year's  rent. 

\'ide  ante,  'f^  support  this  action,  the  plaintiff  must  prove  the  demise  as 

stated  in  the  declaration,  the  levy  made  under  the  Sheriff's  war- 
rant, and  that  notice  of  the  arrear  was  given  to  the  Sheriff,  un- 

RusfeT'^^'   ^^^  sheriff;  or  bailiff'.CS)  and  the  value  of  the  goods  seized. 

3 Taunt. 400.       This  will  entitle  him  to  the  amount  of  a  year's  rent,  provided 

(4)  Hoskins    ^j^g  goods  will  extend  so  far,  and  so  much  were  due  at  the  time 

V.  Knight,  o 

1  M.  &  S.  the  levy  was  made,  but  not  to  any  rent  accruing  due  after  the 
seizure,  though  while  the  Sheriff  was  in  possession, C4)  and  this 

(5)  Gudlam  .  "  .  ."^  i-i 

t;.  Barker,      cven  ui  the  case  ot  a  seizure  or  growing  corn,  which  must  neces- 

1  Price^274.  garily  remain  on  the  premises  to  ripen. (5) 

College^.'"*  I"  regard  to  the  species  of  execution  against  which  the  land- 
Murcox,7      lord  is  thus  protected,  it  has  been  held  that  an  outlawry  in  a  ci- 

T   lifi)  259       .         . 

rriHenchet  vil  suit,(6)  an  execution  for  the  costs  of  a  nonsuit,(7)  and  even  a 

1).  Kimpson,  Seizure  under  a  commission  of  bankrupt,(8)  are  within  the  Sta- 

mR^kf  *  ^^^^  '  but  that  the  prerogative   process  of  an   extent  in  aid  is 

f.  Taylor,  2  uot  :(9)  and  though  the  plaintiff  would  be  protected  against  the 

T.  Rep.  600.  assignees  of  a  bankrupt,  yet  if  the  Sheriff  seize  under  an  exe- 

DeCaux,  cution,  and  such  execution  is  overhauled  by  a  commission,  the 

2  Price,  17.  Sheriff  will  not  be  allo^ved  to  deduct  the  year's  rent  due  to  the 
Lopes,'^?5^  landlord  in  an  action  by  the  assignees,  unless  he  has  actually 
East,  230.  paid  it  over  before  notice  of  the  comraission.(lO) 


JUSTICES,  CONSTABLES,  &c.  6|y 

SECTION  II. 

Against  Justices,  Constables,  and  Revenue  Officers. 

In  actions  against  officers  of  the  criminal  and  revenue  ^aw, ^,Jg  g^^j^jg^" 
some  previous  steps  are  rendered  necessary  by  the  positive  rules    relating  to 
of  several  Acts  of  Parliament,  which  the  plaintiff  must  be  pre-  •'co.'sTabks, 
pared  with  evidence  to  shew  he  has  complied  with,  n)     By  Sta-  ,  . 

tute  21  Jac.  1,  c.  12,  actions  against  justices  of  peace,  mayors, 
bailiffs,  churchwardens,  overseers  of  the  poor,  constables,  and 
other  peace  officers,  or  persons  acting  in  their  assistance,  or  by 
their  command,  must  be  brought  in  the  proper  county.  By  Sta- 
tute 7  Jac.  1,  c.  5,  (made  perpetual  by  the  other  act)  the  defen- 
dant may  give  every  thing  in  evidence  on  the  general  issue.* 
And,  by  24  Geo.  2,  c.  44.  s,  1,  no  writ  can  be  sued  out  against  a 
justice  for  what  he  does  in  the  execution  of  his  office,  till  notice 
in  writing  of  such  intended  writ  has  been  delivered  to  him,  or 
left  at  his  usual  place  of  abode,  by  the  attorney  or  agent  of  the 
party  who  intends  to  sue,  one  calendar  month  before  the  suing 
out  the  same;  in  which  notice  must  be  contained  the  cause  of 
action,  and  on  the  back  of  which  must  be  endorsed  the  name  and 
place  of  abode  of  such  attorney  or  agent.  By  sect.  3,  the  plain- 
tiff must  be  prepared  to  prove  the  notice  on  the  trial :  and,  by 
sect.  5,  he  is  precluded  from  giving  evidence  of  any  cause  of  ac- 
tion not  contained  in  it. 

By  the  same  Statute,  (sect.  6.)  no  action  can  be  brought  against 
any  constable,  or  any  •other  person  acting  by  his  order,  or  in 
his  aid,  for  any  thing  done  in  obedience  to  a  justice's  warrant, 
under  hand  and  seal,  until  demand  made  or  left  at  the  usual 
place  of  his  abode,  by  the  party  intending  to  bring  such  action, 

(7t)  In  Pennsyhania,  vide  Act  21st  March,  MTi,  1  Sm.  L.  304,  and  the  deci- 
sions thefeon  in  Kennedi/  v.  Shoemaker,  1  Bro7une's  Rep.  61.    JMitchellv.  Coiagill, 
4  Binn.  Rep.  20.    Litle  v.  Toland,  f>  Do.  83.    Slocum  v.  Perkins,  3  Serg.  is!  R,   - 
Rep  295.  Prior  v.  Craig,  5  Do.  44.  Jones  v.  Hughes  ft  al.  ibid.  299.  Lake  v.  Shaw, 
ibid.  517.— Am.  Eo. 

•  By  Statute  42  Geo.  3,  c.  85,  s.  6,  the  provisions  of  this  Statute  of  21  Juc.  1,  are 
extended  to  persons  holding,  t  xercisitjg,  or  being  •  mployed  in  any  public  employ- 
ment, office,  station,  or  capacity,  either  civil  or  military,  either  in  or  out  of  this 
kingdom,  who  have,  by  virtue  of  such  public  employment,  offici',  &c.  power  to 
commit  per.sons  to  safe  custody,  except  that  the  pUintltf  is  permitted  to  state  any 
thing  done  out  of  this  kingdom  to  have  been  done  at  JVestmiimter. 
4K 


618  ACTIONS  AGAINST 

• 
Part  II.     or  bj  his  attorney  or  agent,  in  writing,  signed  by  the  party  dt 
^da^r.^'^'tlr*  manding  the  same,  of  the  perusal  and   copy  of  such  warrant- 
justices  and  and  the  same  has  been  refused  or  neglected  for  the  space  of  sis 

^  days  after  such  demand  ;  and  in  case,  after  such  demand  and 

compliance  therewith,  by  shewing  the  said  warrant  to,  and  per- 
mitting a  copy  to  be  taken  thereof  by  the  party  demanding  the 
same,  (which,  it  has  been  holden,  may  be  done  any  time  before 
the  action  is  commenced,  though  after  the  expiration  of  six  days) 
Joues  V.         an  action  be  brought  against  the  constable,  &c.  without  making 

Vaughan,  ^,        .         .  ,    r       t  ,       •  •  i  x 

5  East,  445.  the  justice  a  deiendant,  on  producing  or  proving  such  warrant 
at  the  trial,  the  jury  are  to  give  a  verdict  for  the  defendant,  not- 
withstanding any  defect  of  jurisdiction  in  the  justice.  And  it 
the  action  be  brought  jointly  against  the  justice  and  the  consta- 
ble, then,  upon  proof  of  the  warrant,  the  jury  are  to  find  for 
the  latter,  notwithstanding  such  defect  of  jurisdiction  ;  and  if 
they  find  a^inst  the  justice,  the  plaintiff  is  to  recover  the  costs 
he  is  to  pay  to  such  defendant  against  the  justice.  If  the  Judge 
certify  that  the  injury  was  wilfully  and  maliciously  done,  the 
plaintiff  is  (by  sect.  7.)  entitled  to  double  costs  ;.  and  the  same 
advantage  is  given  to  the  defendant,  in  case  of  his  success,  by 
the  before  mentioned  Statute  7  Jac,  1,  c.  5.  The  action  must, 
by  the  Statute  24  Geo.  2,  c.  44,  s.  8,  be  brought  within  six  ca- 
lendar months,  but  if  any  part  of  the  imprisonment  under  a  war- 
rant be  within  six  months,  the  justice  is  liable  to  an  action  pre 
tanto. 

43  Geo.  3,  Justices  are  still  further  protected  by  a  late  Act  of  Parlia- 

ment, which  enacts,  that  in  all  actions  whatsoever,  which  shall 
thereafter  be  brought  against  any  justice  or  justices  of  the  peace 
in  the  United  Kingdom,  for  or  on  account  of  any  conviction  by 
him  or  them  had  or  made,  under  or  by  vij^ue  of  any  Act  or  Acts 
of  Parliament  in  force  in  the  said  United  Kingdom,  or  for  or  by 
reason  of  any  act,  matter  or  thing  whatsoever,  done  or  command- 
ed to  be  done  by  such  justice  or  justices,  for  the  levying  of  any 
penalty,  apprehending  any  party,  or  for  or  about  the  carrying  of 
any  such  conviction  into  effect,  in  case  such  conviction  shall 
have  been  quashed,  the  plaintiff  or  plaintiffs,  in  such  action  or 
actions,  besides  the  value  and  amount  of  the  penalty  or  penal- 
ties which  may  have  been  levied  upon  the  said  plaintiff  or  plain- 
tiffs, in  case  any  levy  thereof  shall  have  been  made,  shall  not  be 
entitled  to  recover  any  more  or  greater  damages  than  the  sum 
of  two-pence,  nor  any  costs  or  suit  whatsoever,  unless  it  shall 
be  expressly  alleged  in  the  declaration  in  the  action  wherein  the 
recovery  shall  be  had,  and  which  shall  be  in  an  action  upon  the 


JUSTICES,  CONSTABLES,  &c. 


619 


case  only,  that  such  acts  were  done  maliciously,  and  without  any  ch.  xv.  s.  2. 
reasonable  or  probable  cause.  '^''e  *^>-atutes 

T  1  !•         •        I  11  1     •  Ml   t       •  relrttmg  to 

In  cases  where  malice  is  thus  alleged,  it  will  be  important  to  justices  anU 
prove  in  evidence,  not  only  the  circumstances  really  attending  '=ons''»'>'es. 
the  case  of  the  plaintift',  but  also  what  passed  before  the  magis-  "^ 

trate  ;  for  though  the  prosecution  may  have  been  wholly  without  HethuuJ' 
foundation,  yet  the  magistrate  may  have  been  blameless  upon  *  T=*""'- ^®'^- 
the  evidence  laid  before  him. 

And,  by  the  second  section  of  the  same  Act,  it  is  enacted,  that 
the  plaintiff  shall  not  be  entitled  to  recover  against  such  justice 
any  penalty  which  shall  have  been  levied,  nor  any  damages  or 
costs  whatever,  in  case  such  justice  shall  prove  at  the  trial  that 
such  plaintiff"  was  guilty  of  the  offence  whereof  he  had  been  con- 
victed, or  on  account  of  which  he  had  been  apprehended,  or  had 
otherwise  suffered,  and  that  he  had  undergone  no  greater  punish- 
ment than  was  assigned  by  law  to  such  offence. 

This  Act  of  Parliament  extends  to  all  cases  of  convictions,  Massey  v. 
whether  a  pecuniary  penalty  or  a  corporal  punishment  is  inflict- ^^'e^TV? 
ed  ;  and  if  the  party  be  duly  convicted  ;  the  formal    record  of 
conviction  may  be  drawn  up  any  time  before  the  trial  of  the  ac- 
tion. 

Officers  of  the  excise  (by  23  Geo.  3,  c.  70,  s.  30,  &c.)  and  those  Revenue 
of  the  customs  (by  24  Geo. '3,  c.  47,  s.  35.)  are  protected  by  nearly  °*^'"^'"^- 
the  same  regulations  as  were  made  by  the  previous  Statutes  in 
favour  of  justices.  A  month's  notice*  is  to  be  given^  which  is  to 
contain  the  cause  of  action,  and  the  names  and  places  of  abode 
'of  the  person  who  is  to  bring  the  action,  and  of  his  attorney  or 
agent.  The  venue  is  confined  to  the  proper  County,  and  the  de- 
fendant has  the  advantage  of  the  general  issue.  In  two  respects 
only  they  differ  from  the  others,  both  of  which  are  more  favour- 
able to  them,  viz.  the  action  must  be  brought  witliin  three  months^ 
and  the  defendant,  in  case  pf  the  plaintiff's  failure,  recovers  tre- 
ble costs. 

These  Statutes  have  received  the  most  liberal  construction  in 
favour  of  officers  of  justice.  They  extend  to  every  case  where 
a  man  acts  bona  fide  in  the  supposed  execution  of  his  duty, 
though  he  has  transgressed  the  rules  of -law,  and  was  not  autho- 
rised to  do  the  act  complained  of.     And  even  if  one  magistrate  Heller  w* 

Toke,9Easf, 
_____^ 305. 

•  The  day  on  which  the  notice  is  given  is  incl'ided  in  the  reckoning,  and  there- 
fore if  the  notice  be  ^ivt n  on  'he  '28th  April,  the  writ  may  be  sued  ouc  on  the  28lh 
May.     Vide  Caiitle  v.  JiurdeU,  3  T.  Rep.  633. 


I 


Q20  ACTIONS  AGAINST 

Part  11.     act  alone  in  a  case  where  the  law  requires  the  concurrence  of 
oftrr'st'a^ut"".^"*'*'^^^  magistrate,  he  is  still  entitled  to  notice.(o) 

If  an  excise  officer  assault  an  innocent  man,  whom  he  suspects 


(i)D&nieir.  of  being  a  smuggler,  employed  in  running  goods,  no  action  is 

Wilson, 5  T.  maintainable  without  this  notice  ;(1)  but  if  he  make  his  official 
Rep.  1.  .  ..,       \  ^  ,  ..  , , 

station  a  mere  pretence,  as  it  he  seize  goods  not  liable  to  seizure, 

{'2)  Irving  r^   ^^j  extort  monev  for  the  return  of  them,  no  notice  is  necessary 

Wilson,  4  T.  .  •'  -  .  .  *' 

Rep.  480.  previous  to  the  commencement  of  an  action  of  assumpsit  to  re- 
cover back  the  money. (2)  So  if  a  conviction  before  a  justice 
of  peace  be  quashed,  assumpsit  lies  against  the  constable  to  re- 

(3)  FelthmiT).  cover  back  the  money  levied  without  notice.(3)     And  these  Sta- 

Terry,  Bui.  .  •'  "^     .  •  i  •    i 

N.  P.  24.  tutes  being  only  made  to  protect  the  officer  against  actions  which 
go  to  charge  him  with  the  payment  of  money  by  way  of  damages 
for  an  irregular  execution  of  his  office,  have  been  held  not  to  ex- 
(■i)  Fletcher  iq^^  ^q  actions  of  replevin. (4)  The  j^oiistable  is  entitled  to  a 
6  East,  283.'  demand  of  a  copy  of  his  warrant  only  when  he  acts  in  obedience 
to  it;  if  he  act  without  one,  or  exceed  the  authority  conferred 
on  him  by  it,  he  is  not  within  the  protection  of  this  clause  of 
the  Statute.  As  if,  under  a  general  warrant  to  seize  the  authors, 
printers,  and  publishers  of  a  libel,  he  apprehended  the  plaintiff, 

(5)  Moneys. who  is  not  specifically  named  ;(5)  or  break  into  a  house,  and 
55^5*"^^ 2  g,j,,j!*^' break  the  windows,  under  a  common  warrant  to  levy  a  poor 
742.  S.  C.      rate  ;(^6)  or,  if  being  directed  by  the  warrant  to  levy  the  goods 

(6)  Bill  w.  of  the  plaintiff,  described  as  being  of  the  parish  of  G.  in  the 
Oakley ,^2  M.  county  of  K.  and,  in  fact,  that  part  of  the  parish  in  which  the 

plaintiff  resides  is  not  in  the  county  ;(7)   or  if  the  constable  of 

(7)  Milton      QQg  hundred  execute  a  warrant,  directed  by  name  to  the  consta-' 

f.  Oreen,  •' 

5  East,  233.  ble  of  another  hundred,  the  action  may  be  brought  without  any 
fS^Biatchet)  demand. (8)     But  where  the  justice,  by  his  warrant  reciting  that 

Kemp,  1  H.  sugars  had  been  stolen,  and  that  there  was  reason  to  believe  they 
Black.  15,  a. 

(o)  A  writ,  from  a  Court  appearing  on  its  face  to  possess  do  jurisdiction,  will  not 
be  a  justification  to  an  officer.  Wooster  v.  Parsons,  Kirb.  Rep.  110.  S.  P.  GUbei't 
\.  Ryder,  ibid.  m. 

An  action  of  trespass  will  lie  against  a  collector  of  militia  fines  who  distrains  for 
a  fine  imposed  by  a  Court  martial  upon  a  person  not  liable  to  be  enrolled,  the  Court 
martial  having  no  jurisdiction.    IFisev.  Withers,  3  Crn?ic/i''s  Rep.  331. 

But  where  a  house  is  liable  to  be  assessed,  trespass  will  not  lie  against  an  inferior 
offici  r  for  exei;uting  a  warrant  of  distress  f^r  such  assfssmuut,  though  it  be  erro- 
neous. Henderson  et  al.  v.  Brown,  1  Caiiies''  Rep.  92. 

It  lies  agamst  a  justice  of  the  peace  who  issues  a  writ  of  restitution  on  an  indict- 
ment for  a  forclMe  e  .tr}  and  detainer,  after  a  certiorari  has  been  delivered  to 
l)im.   Case  v.  Sh:'>jherd,  '2  Johns.  Cas.  27. 

Et  vide  further  Vail  v.  Lerwis  et  ol.  %  Johm.  Rep,  450.  Williams  v.  Spencer,  5 
Do.  352.— Am.  Ed. 


JUSTICES,  CONSTABLES,  &c.  (Jg£ 

\vere  concealed  in  the  plaintitt''s  house,  directed  the  constable  to  Ch.  XV.  s.  2. 
search  for  and  secure  them,  and  the  constable  did  seize  sugar  C<»iisitueiion 

°      01  uieotatutes. 

there,  which,  in  fact,  had  not  been  stolen,  it  was  holden  that  he  

was  entitled  to  notice,  as  having  acted   within  the  warrant.(l)  jj-)  p,.igg  ^ 
And  it  should  be  observed,  that  though  where  the  constable  ex-  M<^ssen!;i;r, 
eeeds  the  authorit3r  given  him  by  the  warrant,  he  is  not  within  158. 
the  sixth  section  of  the  Statute,  which  requires  a  notice,  yet  that,^,  _ 

r     ,  1       •    (2)  Parton  v, 

he  is  so  lar  within  the  protection  of  the  Statute,  as  to  make  it  Williams, 
necessary  for  the  plaintiff  to  commence  the  action  within  sixl^^'j^^*^"^^*- 
months,  pursuant  to  the  eighth  section   thereof.(2)     Whether,  Wiltshire, 
when  he  acts  without  any  warrant  at  all  he  is  so  protected,  does  gig'*"  " 
not  appear  to  be  clearly  settled. (3)  It  would  probably  be  so  held 
if  the  point  were  to  be  expressly  raised,  though  a  nisi  prius  de- \viiiia,'^,s"  ^' 
cision  of  Lord  Kenyon  is  to  be  found  to  the  contrary.(4)  ^  B.  &  A. 

Where  a  man  sustains  two  characters,  either  of  which  enti- Esp!  226/ 
ties  him  to  do  an  act,  he  may  apply  the  act  which  he  does  to,.,  _    . 

.  .  ■      f*)  Postle- 

either  of  those  characters,  and  claim  the  advantages  of  it:(5)  and,  waiter.  Gib. 
therefore,  where  a  Lord  of  a  manor,  who  as  such  is  entitled  to  "'l'^  "^  ^^P" 

22o. 

seize  the  gun  of  an  unqualified  person,  exercises  that  right,  and 
he  is  also  a  justice  of  the  peace  within  the  county,  no  action  's  ^^^gi^'j^^^g^.'^, 
maintainable  without  notice,  for  the  act  will  be  referred  to  his2H.Biac. 
authority  as  a  justice.  "  *' 

Not  only  must  the  notice  be  given,  but  the  form  prescribed 
by  the  Legislature  must  be  strictly  followed  ;  notice  that  an  ac- 
tion will  be  commenced,  is  not  sufficient;  the  nature  of  the  writ 
or  process  that  is  intended  to  be  sued  out  must  be  particularly 
specified  ;(6)  and  though  the  plaintiff  need  not  state  the  jform  of  (6)  Lovelace 
action  he  intends  to  adopt,  but  will  satisfy  the  Statute  by  stat- |V^^"q J' '^ 
ing  the  cause  of  it,  yet  it  has  been  said,  that  if  he  does  state  one 
form,  and  adopts  another,  the  notice  is  invalid.(7)     Thus,  a  no-^y^  g^'jli!"  ^" 
tice  of  an  intended  action  on  the  case,  for  false  imprisonment  -  <^^amp- 19''- 
and  assault,  has  been  determined  not  to  be  sufficient  to  enable (g)  Strickland 
the  plaintiff  to  give  evidence  on  a  declaration  for  trespass  andi"  )V:irri, 
false  imprisonment.(8)     We  have   seen  that  the   Statute  pro- 031,001^(0,) 
tecting  justices,  also  requires  the  name  and  place  of  abode  of  j?"^' ^^^»  ""^"^ 
the  attorney  or  agent  to  be  endorsed  on  the  back  of  the  notice.jiiie2  Bos. 
The  surname,  with  the  initial  letter  of  the  christian  name,  has*^/*-^^^' 

,  note. 

been  deemed  a  compliance  with  the  Statute  in  this  particu- 
lar ;(9)  but  if  the  place  of  abode  be  not  directly  stated,  it  is  fa-^^ffie,'^"' 
tal.  As  where  the  attorney  signed,  "  Given  under  my  hand  at''  Taunt.  63. 
Durham,^'  the  notice  was  holden  to  be  bad,  because  this  was  not((o)Ta}ior 
a  direct  allegation  that  he  resided  at  that  place  ;(10)  but  where ^-  Fenwick, 
the  attorney  signed  his  name,  PF.  .V.  of  Birmingham,  it  was 'ss.^^'liote^a!) 
deemed  sufficient,  though  the  particular  street  was  not  nam-  ^'".'  ^  '^-  ^ep- 


Q9,2  AcrioXS  AGAIXST 

Part.  II.      ed  ;C1)  it  being  enough  if  the  direction  be  so  certain  as  to  eua 
omStuies. '^'^  the  defendant  to  make  a  tender.     The  Statutes  for  the  pro- 
Notice,      tection  of  excise  officers,  i-equire  not  only  the  name  and  place  of 
• abode  of  the  attorney  to  be  mentioned,  but  that  of  the  party  also, 

(1)  Osborne    and  therefore  his  place  of  abode  at  the  time  of  giving  the  notice, 

Bos.  k^PuL    ^'^  ^^^"  ^^  ^^^^^  ^*  *'^^  ^""^  ^^  ^^^  ^^i^U'  ™iist  be  mentioned  in 
551.  the  notice  ;(2)  but  if  it  describe  two  partners,  one  of  Ji.  and  the 

other  late  of  ^.  that  is  sufficient.(3) 
Time  of  com-      The  general  issue  being  given  in  all  these  cases,  the  plaintiff 
mcncmg  the    gj^Quld,  in   cases  -where  the  record  does  not  shew  the  action  to 

action.  1        •   I  •        1         •  i-  1-     ■        • 

have  been  commenced  withm  the  time  or  limitation,  be  prepar- 

(2)  Williams  ed  with  the  writ  to  produce  in  Court,  and  if  the  defendant  were 
Tautlt'Tsr'  ^^^^  served  with  the  first  writ,  it  must  be  connected  with  the  se- 

"cond,  as  was  before  directed  in  the  instance  of  actions  on  penal 
j^iiiot^s  b'  Statutes.  If  the  plaintiff  be  imprisoned  for  a  length  of  time,  he 
fetP.  552.  has  six  months  from  the  end  of  his  imprisonment  to  bring  his 
'4)  Pickers-  action.(4)  But  it  has  been  holden,  that  an  action  against  a  cus- 
giiif.  Palmer,  (Qyjj.hoygg  officer  for  seizing  goods,  must  be  brought  within  three 

i^ul,  N.  P.  124.  .  .  .... 

Massev-y.  '    months  after  the  actual  seizure,  notwithstanding  a  suit  instituted 

Johnson         -j^  ^j^^  Exchequer  for  condemnation  of  the  goods,  which  is  de- 

pending  at  the  expiration  of  the  three  months. (5)     And  in  the 

l^i,>°!''"       other  case,  of  a  continuing  cause  of  action,  if  the  plaintiff  give 

2H,Biac.  14.  a  notice,  and  thereby  confine  himself  to  the  trespass  therein 

{6)  Wesiotif  nientioned,  he  must  shew   either  that  the  writ,  with  which  the 

Fournier,       defendant  was  served,  issued  within  six  months  after  the  tres- 

^^  ''^    '  pass  mentioned  in  the  notice,(6)  or  that  it  is  a  continuance  of  a 

i7)  Ante, 456.  ^vrit  sued  out  within  that  time  ;  the  mode  of  shewing  which  has 

been  before  spoken  of.(7)     After  this  preliminary  evidence,  the 

^fl^f^^"''^    plaintiff  is  at  liberty  to  prove  his  trespass,  as  in  other  cases,  ei- 

<  Qiiviciioii.     ther  by  shewing  the  act  done>by  the  defendant  himself,  or  by 

the  warrant  in  the  case  of  a  justice,  and  this  prima  facie  case 

will  in  general  call  for  an  answer  from  the  defendants,  and  throw 

the  oni'.s' probandi  upon  them.     Thus  it  has  been  holden,  that 

where  an  action  of  trespass  is  brought  against  a  custom  house 

officer  for  seizing  goods,  it'  is  incumbent  on  the  defendant  to 

8)  Saioman  i^hew  that  the  duty  has  not  been  paid  ;(8)  and  that  even  a  con- 

2  Biack.813.  demnation  of  the  goods  before  commissioners  of  excise  will  not 

dispense  with  the  necessity  of  this  evidence.(9)     But,  by  a  Sta- 

(9)  Hensliaw  •     .  .     .  "  . 

V.  Pleasance,  tute  since  made,  it  is  enacted,  that,  in  such  case,  the  proof  of 
ib.  1174.  payment  of  the  duties  shall  lay  upon  the  plaintiff'  and  not  upon 
(10)23  Geo.  the  officer.(lO)  If  the  officer  prove  a  condemnation  in  the  Ex- 
^''^''^'^'^^  chequer,  this  is  conclusive  evidence  that  the  property  is  vested 
(iiJScott       j„  thg  King,  and  a  complete  bar  to  the  action.(ll)     But  though 

1.  Shearman,  .  *'  .  '^         ,  >       /-,  ,      •  i     i     • 

2  Black.  977.  m  the  action  against  the  excise  officer,  tne  Court  decided  that  a 


JUSTICES,  CONSTAnr.ES.  &c.  623 

condemnation  before  the  commissioners  did   not  conclude  tlie  Ch.  XV.  s.  2, 
plaintiiF,  yet,  in  an  action  against  a  justice  it  has  been  holden,(l)     ^p°oo"  * 
that  if  he  prove  his  warrant,  and  conviction  of  the  plaintift'of  any    Conviction. 

offence  within  his  jurisdiction,  it  will  be  conclusive  evidence  in  

his  favour,  till  reversed  or  quashed,  and  that  the  propriety  or(OSt'i<;kiam! 
justice  of  it  cannot  be  controverted  at  Ntsi  Frins  ;  nor  can  any  ^^j,  p.-g .  jy 
evidence  of  facts  not  in  proof  before  the  justice  be  adduced  to  East,  75 
shew  that  the  justice  exceeded  his  jurisdiction  ;(2)  but  it  thejus-son,  16  Kast, 
tice  had  no  jurisdiction,  or  knowingly  exceeded  it,  as  where  i^- 
having  convicted  a  man  of  one  offence  in  exercising  his  ordinary  rs)  Btitiianr, 
calling  on  a  Sunday,  he  afterwards  convicted  him  of  another  J^J^^"^"^','''^ 
such  offence  on  the  same  day,  which  could  not  possibly  be  com-  Bing.  432. 
mitted,  the  second  conviction  being  absolutely  void,  an  action  £°*,  of  jj^li. 
lies  at  the  suit  of  the  party  injured,  without  quashing  it;(3)  and  nor, 8  East, 
the  like  decision  took  place  where  justices  having  summoned  a 
late  overseer  to  deliver  up  a  particular  book  belonging  to  the  pa-('0  dipps 
rish,  committed  him,  on  his  refusal  to  do  so,  until  he  should  have  Cowp.  64o. 
delivered  up  all  books  belonging  to  the  parish,  such  adjudication 
and  commitment,  beyond  the  terms  of  the  original  complaint^ 
making  the  warrant  void  in  toto.(4)     It  has  been  said,  that  in(*)Groorae 
actions  of  this  kind,  the  justice  is  obliged  to  shew  the  regularity  5  M.&S.  814. 
of  his  proceedings,  and   that  the  informations,  &c.  upon  which.,,  „... 
his  conviction  was  founded,  must  be  produced  and  proved  inBateman, 
Court  ;(5)   but  it  seems  to  be  now  clearly  settled,  that  the  con-'"  ^"''*" '^"■'' 
viction  itself  is  sufficient  when  drawn  up  in  form,  though  done 
immediately  before  the  time  of  its  production  in  Court.(-6) 

It  may  be  proper  to  add,  to  what  has  been  already  said  re-    Tender  ot 
specting  these  actions,  that  the  justice  may,  by  the  Stat.  24  Geo.      "^^nds. 
3,  c.  44,  s.  2,  and  the   excise  and    custom-house  officers  by  the  (6)  Vide 
Statutes  before  alluded  to,  within  one  month  after  the  notice,  jJf^^,\o'„^' 
tender  amends  to  the  party,  or  to  his  agent  or  attorney,  and  in  12  East,  6"; 
case  it  is  not  accepted,  plead  such  tender  in  bar,  together  with  ^f *§',,. igj^fai'j^ 


the  general  issue  ;  and  if  the  jury  find  it  to  be  sufficient,  the  de-  ^;  Ward,  ami 
fendant  shall  have  a  verdict ;  and  if  the  justice  or  excise  officer  so'n^^mte  4.U 
shall  have  neglected  to  have  tendered  any  amends,  or  not  tender- 
ed sufficient,  he  may,  at  any  time  before  issue  joined,  pay  such 
sum  into  Court  as  he  shall  see  fit,  whereupon  such  proceedings, 
&c.  shall  be  had  as  in  other  cases  where  a  defendant  is  permitted 
•to  pay  money  into  Court. 

Where  the  defendant  pleads  a  tender,  the  plaintiff"  may  eithei 
reply  that  there  was  no  tender,  or  that  the  sum  tendered  waS 
not  sufficient ;  in  the  one  case,  the  issue  will  be  on  the  defend 
ant;  in  the  other,  the  evidence  will  be  the  same  as  if  the  cause 
had  stood  on  the  general  issue. 


I 


(  6M  ) 


CHAP.  XVI. 

OF  THE  EVIDE'NCE  IN  ACTIONS  BY  AND  AGAINST  ECCLESIASTICAL 
PERSONS. 

SECTION  I. 

In  actions  by  the  Patron  or  Parson  to  try  the  title  to,  or  obtain 
possession  of  the  Church. 

Part.  IT.         I.  When  the  title  to  present  is  disputed,  and  the  bishop  ad- 
djt.         mits  the  clerk  of  one  patron  in  preference  to  the  other,  or  on  ac- 

count  of  the  dispute  refuses  to  admit  either,  the  patron  whose 

clerk  is  refused  admission  brings  his  quare  impedit  against  the 
bishop,  the  other  patron,  and  his  clerk.  In  this  action  the  plead- 
ings are  special ;  the  declaration  states  the  title  of  the  plaintiff; 
that  he  is  seised  of  a  manor  to  which  the  advowson  is  appendant^ 
or  of  the  advowson  itself  in  gross,  as  the  case  ma.y  be ;  that  he, 
or  those  under  whom  he  claims,  have  presented  on  a  former  oc- 
casion ;  that  the  clerk  so  presented  has  been  instituted  and  in- 
ducted into  the  living  ;  and  that  the  church  having  become  void, 
his  right  has  been  disturbed  by  the  defendant.  The  defendant, 
viz.  the  other  patron,  (for  the  bishop  and  clerk  usually  disclaim 
any  title,)  sets  out,  in  his  plea,  his  own  title,  and  concludes  with 
a  traverse  of  some  fact  in  the  declaration,  generally  the  plain- 
tiff's seisin  of  the  manor,  the  appendancy  of  the  advowson  to  it, 
or  the  plaintiff's  seisin  of  the  advowson  in  gross. 

On  pleadings  so  framed  the  plaintiff  must  be  prepared  wi4h 
evidence  to  support  his  claim  as  stated  in  the  declaration.*  He 
must  prove  at  least  one  presentation  by  himself,  or  those  from 
whom  he  derives  title,  and  that  the  clerk  so  presented  was  duly 

•  It  has  been  usual  to  insen  but  one  count  in  a  declaration  in  quare  impfdit,  and 
when  the  defendant  could  'lem-inrl  oyer  of  tli''  original  writ,  and  avail  bims<-lf  of  any 
variance  between  that  and  the  declaration,  there  might  have  been  great  diffioalty  in 
doing  otherwise ;  but  now  tli  t  oyer  of  ih  •  ong  nal  writ  cannot  be  ob'ai'ied,  there 
"^oes  not  seem  to  be  any  objection  to  rhe  plaintiff  staling  his  title  in  a  variety  o'ways 
so  as  the  more  certainly  to  avoid  a  va-iance  b'  tw.-en  his  pleading  and  his  proof.  In 
a  very  recent  instance  a  declaraiio'i  was  so  drawn,  and  no  objection  made  to  it.- 
Jii'ch  V.  Bishop  of  Litchfield  and  Coventry,  3  Bos.  &  Pul.  444. 


ECCLESIASTICAL  PERSONS. 


G25 


instituted  and  inducted  into  the  living.     To  shew  this  he  should  ch.Xvt.  s.  i. 
produce  and  prove,  by  the  subscribing  witnesses,  the  presentation  Quar  'jnpe- 
and  letters  of  institution,  and  also  prove  the  induction  by  some  _ 
witness  present  at  the  time,*  or  at  least  prove,  that   the  person 
so  instituted  continued  in  peaceable  possession  of  the  church. 
If  the  letters  of  institution  are  lost,  the  bishop's  register  should 
be  produced,  and  as  a  presentation  may  be  by  parol,  that  alone 
has  been  holden  to  be  sufficient ;  and  where  a  blank  was  left  for 
the  name  of  the  patron  parol  evidence  was  received  to  shew  who  Vide  ante, 
was  the  person  actually  presenting.     In   cases  where  there  is 
reason  to  apprehend  evidence  of  title  in  the  defendant,  it  will 
be  proper  to  prove  as  many  instances  of  presentation  as  possible; 
for,  as  this  is  the  only  way  of  exercising  the   right,  every  in- 
stance gives  additional  strength  to  the  title.     But  if  the  defend- Hob.  163. 
ant  merely  plead  the  general  issue,  viz.  that  he  did  not  disturb, 
the  title  does  not  come  in  question,  and  the  plaintiff  may  either 
have  judgment  or  go  for  damages  by  proving  the  disturbance,  to 
shew  which  he  must  prove  the  presentation,  the  bishop's  refusal, 
and  the  institution  or  presentation  of  the  other  clerk. 

The  defendant,  in  cases  wliere  his  clerk  also  has  been  refused  Vaughan,  6,^ 
admission,  must  not  only  be  prepared  with  evidence  to  contro- 
vert the  title  of  the  plaintiff,  and  shew  that  the  former  presenta- 
tion was  an  usurpation  upon  his  right ;  but  must  also  support  his 
own  title,  by  the  like  evidence  as  was  necessary  on  the  part  of 
the  plaintiff,  because,  in  this  case,  both  parties  are  actors,  and 
if  the  verdict  be  found  for  the  defendant,  and  his  title  establish- 
ed, he  is  entitled  to  have  his  clerk  admitted. 

If  the  issue  be  upon  the  avoidance,  the  manner  in  which  it  is 
stated  is  not  very  material;  an  avoidance  by  the  death  of  the  Co.  Lit.  282, «. 
last  incumbent  will  support  an  allegation  of  an  avoidance  by  pri- 
vation ;  and  if  the  allegation  on  the  other  hand  be,  that  the 
church  became  void  by  his  death,  it  may  be  shewn,  that  he  has  Dyer,  377.  b. 
taken  another  living  without  the  necessary  dispensation,  for  the 
'manner  of  the  avoidance  is  not  the  title  of  the  plaintiff,  but  the 
avoidance  itself.     In  cases  where  the  acceptance  of  another  liv-  ibid. 
ing  is  made  the  ground  of  the  action,  it  must  be  proved,  that  the 
parson  subscribed  the  thirty-nine  articles  upon  his  appointment 
to  the  second  benefice,  for  unless  he  has  so  donef,  although  insti- 
tuted and  inducted  into  it,  he  never  became  lawful  parson  of  it;  Shute  t>.  HJg- 
and  therefore  did  not  avoid  the  first,  though  the  fact  of  his  after-  J^J;  ^^^^^^^ 
wards  officiating  as  parson,  would  now  probably  be  considered 

t  As  to  the  manner  of  induction,  and  the  different  acts  necessary  to  be  done,  see 
jBum's  Ecclesiastical  Lav,  tit.  Benefice. 
4  L 


626  ACTIONS  BV  and  AGAtNST 

Pari  II.     as  evidence  of  his  having  so  subscribed.(l)  But  if  he  has  subscrih 
dit""^^'  ecZ  the  articles  on  his  appointment  to  the  second  living,  thougU 
_________  he  may  afterwards  forfeit  it,  by  not  reading  them  within  two 

(1)  Vide  ante,  "'^""ths  after  his  induction,  yet  the  first  living  becomes  void. 

By  the  Stat.  36  Geo.  3,  c.  83,  s.  3,  curacies  augmented  by 
Queen  Anne^s  bounty,  are  to  be  considered  as  benefices  presen- 
tative,  so  as  that  the  license  thereto  shall  operate  in  the  same 
manner  as  institution  to  such  benefices,  and  shall  render  voida- 
ble other  livings  in  like  manner,  as  institution  to  the  said  bene- 
fices. In  case  of  the  avoidance  of  the  living,  by  the  acceptance 
of  such  a  curac}',  it  must  be  proved,  that  it  has  been  in  fact  aug- 
mented. But  to  establish  this  fact,  it  will  be  sufficient  to  prove 
Doe  dem.       the  order  for  the  augmentation,  entered  in  a  book,  signed  by  the 

Graham  v.  ,.®  ^^  *•'., 

Scutt,  11        governors,  according  to  Stat.  1  Geo.  1,  Stat.  5,  c.  10,  s.  20,  witn- 
East,  478.       ^y^  going  on  to  prove  that  the  money  was  afterwards  laid  out  in 
land  and  allotted  by  deed,  under  the  corporation  seal  of  the  go- 
vernors, and  that  such  deed  was  enrolled  within  six  months  af- 
ter its  execution,  as  required  by  the  Act. 

In  cases  of  this  kind  it  may  be  necessary  for  the  defendant  to 
prove  his  dispensation  as  chaplain  to  some  nobleman  ;  and  it 
should  seem,  that  unless  the  retainer  be  lost,  it  should  be  prov- 
ed like  other  instruments  by  the  production  and  evidence  of  the 
1 .  Rep,  .  gybscribing  witness ;  it  has,  however,  been  said,  that  the  oath  of 
any  person  who  has  seen  the  retainer  under  hand  and  seal  is 
good  ;  but  that  a  copy  of  it,  entered  in  the  Court  of  Faculties,  is 
not  sufficient. 

If  the  issue  be  proved  for  the  plaintiftthe  jury  should  inquire, 
1st.  Whether  the  church  be  full,  and  if  so,  upon  whose  presen- 
tation ;  for  if  upon  the  defendant's  presentation,  the  clerk  is  re- 
moveable.     2dly.  The  value  of  the  living  to  enable  them  to  as- 
sess damages  according  to  the  Statute  of  Westminster.    3dly.  In 
caseof  plenarty  upon  an  usurpation,  whether  six  calendar  months 
have  passed  between  the  timesof  the  avoidance  and  bringing  the 
action,  for,  if  that  time  has  passed,  the  case  will  not  be  within 
the  Statute,  which  only  permits  a  usurpation  to  be  devested  by 
a  writ  brought  infra  tempus  semestre.     These  facts  are  seldom 
matters  of  dispute  in  the  cause ;  but,  unless  admitted,  the  plain- 
tiff should  be  prepared  with  evidence  to  ascertain  them. 
Ejectment.       jj    "Where  the  parson  has  been  admitted,  instituted,  and  in- 
ducted into  the  living,  and  any  person  afterwards  keeps  posses- 
Snow  dem.     sion  of  the  Parsonage  house,  or  glebe,  or  continues  to  receive 
PhfiTim,i       the  tithes,  ejectment  is  the  proper  remedy  to  recover  the  posses- 
Sid.  220,        gion.    jn  this  action  he  must  prove  his  admission,  institution. 


ECCLESIASTICAL  PERSONS.  ggy 

and  induction  ;  and  it  was  formerly  holden  to  be  necessary  forch.XVLs.  i. 
him  to  prove  also  tliat  he   had  read  and    subscribed  the  thirty-    Ejectment. 
nine  articles,  according  to  the  Statute,  and  declared  his  assent  — — — — 
and  consent  to  all  things  contained  in  the  Book  of  Common 
Prayer.     Of  this,  however,  he  is  not  now  compelled  to  give  evi-P"weiiv. 
dence,  unless  some  ground  be  laid  by  the  defendant  to  shew  that  vv'iis.'*355     2 
he  has  not  complied  with  those  requisites  ;  for,  the  presumption  i^'ac.  851,  s. 
is,  that  every  man  has  conformed  to  the  law,  until  there  is  some 
evidence  to  the  contrary.     Neither  is  the  plaintiff  obliged  to  Vide  Bui.  N. 
prove  any  title  in  his  patron,  for  institution    and  induction,  ^'  ^"^^^ 
though  upon  the  presentation  of  a  stranger,  is  sufficient  to  put 
the  rightful  patron  to  his  quare  inipedit. 


SECTION  IT. 

In  actions  for  tithes. 

Where  the  tithes  have  been  taken  by  the  defendant  under  an     Sect.  2. 
agreement  and  composition  with  the  plaintiff',  assumpsit  on  the      f-th^.s.""^ 
contract  is  the  proper  remedy  ;  and  no  further  evidence  is  ne-  _ 

cessary  in  this  case  than  the  occupation  of  the  defendant,  his 
contract  with  the  plaintiff,  and  the  retaining  of  his  tithes  in  con- 
sequence of  si^ch  contract. 

But  where  there  is  no  existing  contract,  and  the  farmer  has 
neglected  to  set  out  his  tithes,  or  has  made  a  fraudulent  and 
colourable  severence,  and  then  carried  them  away,  the  proper 
remedy  for  predial  tithes,  viz.  corn,  hay,  a«d  such  like  things, 
which  arise  immediately  from  the  earth,  is,  by  action  of  debt, 
founded  on  the  Stat,  of  2  &  3  Edtv.  6,  c.  13,  which  in  such  case, 
gives  treble  the  value  of  the  tithes  withheld  ;  and  when  the  sin- 
gle value  found  by  the  jury,  does  not  exceed  20  nobles  (61.  13s. 
4rf.)  the  Stat.  8&  9  W.  3,  c.  11, gives  the  plaintifFhis costs.  But 
if  the  jury  find  the  single  value  above  that  sum,  or  an  arbitrator 
awards  even  less,  or  the  plaintiff  declaring  for  less  the  defend- 
ant suffers  judgment  by  default,  so  that  the  value  is  not  "  found 
by  the  jury,"  within  the  words  of  the  latter  Statute,  no  costs  are 
payable  by  the  defendapt.d)  (,)  Barnard' 

In  ordinary  cases  it  will  be  sufficient  in  this  action  for  the  t;.  Mo»s,  i  H. 
plaintiff"  to  prove  himself  in  possession  of  the  rectory  or  tithes,  ^^'*^^'  ^°  * 
without  entering  into  his  title  j(2)  as,  where  he  has  been  some(2)  Vide  BuU 

N.  P.  188" 


6S8  ACTIONS  BY  AND  AGAINST 

A^tionfor    ^^^^  '"  *^^  uninterrupted  receipt  of  tithes  from  the  different 
tithes.      landholders  in  the  parish,  and  no  one  has  disputed  his  title  ;  and 

. if  the  rector  of  d.  has  for  a  length  of  time  been  in  the  undis- 

turbetl  receipt  of  tithes  arising  from  a  particular  close  in  the  pa- 
rish  of  H.  that  will  also  be  prima  facie  evidence  of  his  title  to 
Siesfenge"',"'  ^"'^'^  tithes.(l )     But  the  mere  circumstance  of  his  having,  as  far- 
3  East,  25i'.    "^^'*  ^^^  ^he  tithes,  called  a  meeting  of  the  parishioners  to  treat 
with  them  as  to  a  composition,  when  no  agreement  took  place  in 
consequence,  is  not  sufficient,  although  no  one  at  that  meeting 
i^^T^'ck'T'    ^^*P"^^^  '^^^  title.(23  In  cases,  therefore,  where  no  acknowledg'' 
^os.  &  p'ui.    "^^"t  <^f  his  title  has  taken  place,  he  must  prove  it.    If  he  claim 
*58.  as  parson,  he  must  prove  his  ordination  by  the  bishop,  his  insti- 

tution and  induction  into  the  living,  and,  as  said-^  in  some 
(3)  Vide  Bui.'^^^'^^'C^)  h'^  subscription  to  the  declaration  in  the  act  of  unifor- 
N.P.  I88,&c.  mity  in  the  presence  of  the  bishop,  and  his  reading  the  thirty- 
nine  articles  within  two  months,  and  declaring  his  assent  to  them. 
This  latter  evidence,  however,  since  the  case  of  Powell  v.  Mil- 
bank,  does  not  seem  to  be  strictly  necessary,  until  the  contrary 

(4)  Ante,  is  shown  by  the  defendant.(4)  If  the  plaintiff  sue  as  a  lay  im- 
Mnnks^t*  propriator,  the  strict  proof  of  title  is  to  shew  that  the  rectory 
Butler,  1  originally  belonged  to  one  of  the  dissolved  monasteries,  and  was 
and 3  East  '''granted  by  the  crown  to  those  under  whom  he  claims  ;(5)  but, 
l'^^-  as  deeds  and  instruments  are  liable  to  be  lost,  length  of  posses- 

(5)  Vide  Co-  sion,  and  old  deeds,  conveying  tithes,  have  been  deemed  suffi- 
myn's  Rep.     cient  evidence  of  title.(6)     When  the   plaintiflf  sues  as  farmer 

of  the  tithes,  he  must  prove  a  lease  by  those   under  whom  he 
(G)  Kynaston    claims  i7\  ■' 

•u.  Claik,5T.  '^'Z 

Rep.  265.  The  plaintift"  must  then  prove  the  defendant's  occupation  of 

(7)  Seiwyn  V  lands  within  the  parish,  his  taking  away  the  tithes,  and  the  value 
Baidy;and  of  them  ;  and,  if  there  has  been  any  agreement  for  a  composi- 
Giljiis, ^Bd.  tion,  it  has  been  said  that,  he  must  shew  such  composition  to 
N.  P.  188.  \i2iVQ.  been  discharged  by  six  months  regular  notice,  expiring  at 
the  end  of  the  year,  in  the  same  manner  as  in  the  common  case 
CiwS.'!S^2  °^  ^  tenancy  from  year  to  year.(8)  A  mere  conversation  and 
B-o.Ch.  Rep.  demand  of  the  tithes  two  years  before  the  action,  not  followed 
S  Wyburd  by  any  formal  notice,  has  been  holden  not  to  be  sufficient  ;(9) 
•V.  Tuck,  ubi  but  where  the  inhabitants  of  a  parish  had  been  for  a  length  of 
*"^*  time  in  the  habit  of  paying  a  certain  composition  for  the  vica- 

(9)  Fell  V.      rial  tithes,  and  at  the  usual  time  of  settlement  the  vicar  gave  a 
6^1^82/^     verbal  notice  to  the  parishioners,  that  for  the  future  he  should 
require  the  tithes  to  be  rendered  to  him  in  kind,  this  was  con- 
sidered as  determining  the  composition,  and  entitling  him  to 


ECCLESIASTICAL  PERSONS. 


628 

call  OB  the  landholders  present  to  set  them  oat.(l)*     On  this  ch.XVL  3.2, 
evidence  the  lands  will  be  presumed  to  be  chargeable,  unless  the    A.ction  foi- 

tithes 

contrary  be  shewn  on  the  part  of  the  defendant,  and  though  they 


have  never  paid  tithes,  that  alone  will  furnish  no  defence,  if  the/,w  gg^jj  ^ 
declaration  state  that  tithes  were  yielded  and  payable/9,)  within  Caiiey,  6 
forty  years  next  before  the  making  of  the  Statute  ;  though  where    "*^^' 
the  declaration  merely  stated  that  they  were  yielded  and  paid(^5)  (2)  Miichei 
within  forty  years  next  before  the  Statute,  some  evidence  of  t.  Rep.  260. 
payment  was  required;  and,  though  a  layman  canhot  prescribe  ^^'^  ^!^"  H'*^" 
in  non  decimando,  yet  if  the  tithes  belong  to  a  lay  impropriator,  Trappes,  2 
and  the  land  in  question  has  been  constantly  ploughed,  and  no^°*- ^?"'" 
tithe  paid,  it  may  be  ground  for  the  jury  to  presume  a  grant  by 
him,  and  severance  of  the  land  from  the  rectory .t     In  this  case,  ^^^j|j|[^^^'g,j  ^ 
therefore,  the  onus  will  lie  on  the  defendant  to  shew  that  it  has  Clarke,  cited 
been  constantly  before  in  a  state  of  tillage.(4)  2gg*  '^^P* 

In  cases  where  the  lands  are  discharged  from  tithes  by  a  mo- 
ney payment  or  modus,  the  evidence  will  be  of  the  same  nature  [;o„/iiep. 
as  in  all  other  cases  of  custom,  viz.  the  constant  and  uniform  *'*^- 
payment  of  the  sum  taken  in  lieu  of  tithe.     A  continued  pay-Panshaw,  3 
ment  of  a  sum,  small  enough  to  be  considered  as  an  immemorial '!^^^'^^}-\'^' 

°  Uep.  264,  Kc. 

payment,  will,  if  the  origin  of  it  be  not  shewn  by  the  parson,  be 
deemed  sufficient  evidence  of  its  having  been  immemorial ;  and 
the  circumstance  of  the  witnesses  calling  it  a  composition,  will 
not  lessen  the  legal  effect  of  such  payment.(5)  It  has  been  (5)  Driffield 
much  the  practice  of  late  years  to  produce  ancient  documents,  pP'"''^'''.® 
such  as  Pope  Nicholas's  Taxation,  the  Ecclesiastical  Survey, 
and  ministers  accounts  in  the  time  of  Henry  the  eighth,  and  the 
parliamentary  surveys  in  the  time  of  the  commonwealth,  to  in- 
validate moduses  ;  and  in  the  above  case  the  latter  document 


•  In  this  case  the  Cliief  Baron  Richards  held,  that  where  a  modus  w us  set  up 
■vvhicli  failed,  the  defeadant  could  not  insist  on  notice.  In  Bishop  v.  Chichester , 
vide  supra,  Lord  Thublow  on  the  autliority  ot  Adams  v.  Hnuit,  contrary,  as  it 
shoulil  seem  (o  his  own  judgment,  held  otherwise  ;  and  there  does  not,  in  point  ot" 
sound  sense,  appear  to  be  greater  reason  for  it,  than  in  the  common  case  of  a  tenant 
who  sets  up  title  in  himself. 

t  In  Mead  v.  J^orbury,  2  Price,  338,  the  Court  of  Exchequer,  held,  that  a  giant 
of  tithes  could  not  be  presumed,  even  as  against  a  lay  impropriator,  unless  some 
evidence  were  given  of  the  gi'ant  ;  or  enjoyment  of  the  tithes  shewn  by  something 
like  actual  pernancy,  or  a  dealing  witii  the  tithes  as  owner;  and  that  the  ciicum- 
filances  of  the  church  having  been  long  dilapidated,  and  no  tithe  paid,  of  a  former 
impropriator  having  declared  that  the  lands  in  question  were  exempt  from  tithes, 
and  leases  from  the  rector  of  the  impropriate  rectory  excepting  the  tithes,  were  not 
sufficient  to  raise  the  presumption,  Scd  vide  Lixdy  Dartmouth  v,  Roberts,  16  East 
334;  ante. 


630 


ACTIONS  BY  AND  AGAINST 


Part  II, 

Action  tor 

tithes. 


(1)  3eev. 
Hocklev,  4 
Price,  87  ; 
vide  5  Price, 
377. 


(2)  Drake  v. 
Smith,  5 
Price,  369. 
Mytton  V. 
Harris,  3 
Price,  19. 


Bishop  of 
■VVincfiester's 
Case,  2  Co. 
44. 


Vide  Hob. 
292. 


Ante,  135. 


Nash  ^>. 
Mollins.Cro. 
Eliz.  206. 
Hob,  300. 


appears  to  have  been  introduced  for  that  purpose,  on  which  the 
Chief  Baron  Richards  is  reported  to  have  said,  "  that  the  fact 
of  the  parliamentary  survey,  not  referring  to  the  tnoduses,  was 
nothing  when  opposed  to  the  proof  of  actual  payment.  Had 
that  document  (his  Lordship  added,)  though  it  is  certainly  en- 
titled to  great  weight  on  some  questions,  even  stated  that  there 
was  no  modus,  it  would  not,  as  being  on  that  subject  res  inter 
altos  acta,  be  strong  enough  to  overturn  the  positive  evidence  of 
actual  payment,  still  less  was  the  mere  omission  to  mention  it 
sufficient/'  On  other  occasions(l)  these  documents  have  been 
considered  as  by  no  means  conclusive  on  such  a  question.  But 
a  terrier,  signed  by  the  minister  and  parishioners,  is  the  strongest 
evidence  which  can  be  adduced  either  to  disprove  the  modus  al- 
together, or  to  prove  the  nature  of  the  payment,  and  define  its 
legal  character.(2) 

Where  the  defendant  contends  that  the  lands  are  wholly  ex- 
empt from  tithes,  he  must  shew  the  ground  of  discharge ;  for  the 
mere  circumstance  of  their  not  having  been  before  charged,  is 
(as  observed  above)  not  sufficient,  because  a  layman  cannot  set 
up  a  prescription  de  non  decimando,  without  deducing  his  title 
from  some  ecclesiastical  person,  though  he  may  one,  de  modo 
decimandi,  without  any  such  aid. 

But  though  a  layman  cannot  sjo  prescribe,  a  bishop,  or  his  te- 
nant or  copyholder,  may  shew  that  he  and  all  his  predecessors, 
seised  of  such  a  manor  in  right  of  the  bishoprick,  have  held  the 
manor  by  them  and  their  tenants  discharged  of  tithes  ;  and  the 
Stat,  of  31  Hen.  8,  c.  13,  having  continued  the  exemption  of 
lands  belonging  to  the  monasteries  thereby  dissolved,  in  the 
same  manner  as  those  religious  houses  enjoyed  them  before  their 
dissolution,  any  lay  person,  upon  shewing  that  such  lands  did 
belong  to  a  religious  house  dissolved  by  that  Statute,  or  by  Stat. 
32  Hen.  8,  c.  24,  and  that  while  in  their  hands  they  were  exempt 
from  tithes,  may  hold  such  lands  discharged  from  them  in  the 
same  manner  as  they  were  enjoyed  by  the  monastery. 

The  grounds  of  discharge,  which  spiritual  persons  enjoyed 
before  this  Statute,  were  four  in  number,  viz.  1.  By  the  pope's 
bull  of  exemption,  which  may,  as  was  observed  before,  be  proved 
by  the  bull  itself,  or  an  exemplification  of  it  under  the  bishop's 
seal,  and  proof  that  the  lands  in  question  belonged  to  those  men- 
tioned in  it. 

2dly.  By  prescription,  and  unless  it  be  proved  that  the  lands 
have  paid  tithes,  the  mere  circumstance  of  their  having  belonged 
to  a  monastery  so  dissolved,  will  ht  prima  facie  evidence  that 


ECCLESIASTICAL  PERSONS,  63 £ 

they  immemorially  held  it  discharged  of  tithes.     The  religious  ch.  XVLs.  2. 
house  must  be  one  founded  before  the  time  of  legal   memory    ^j[j[Jg/°"^ 

(1  Rich.  1.)  for  if  founded  within  that  time,  there  could  be  no  

such  prescription. 

3dly.  By  composition  real,  which  was,  when  lands,  or  other 
real  recompense,  were  assigned  to  the  parson  as  a  compensation 
for  the  tithes  of  the  land  in  question.  This  must  be  made  with 
the  parson,  by  consent  of  the  patron  and  ordinary,  and  may  exist 
in  the  case  of  a  layman,  as  well  as  of  an  ecclesiastical  person. 
Those  made  with  the  ecclesiastical  houses,  must,  of  course,  be 
made  before  the  Statute  of  13  Eliz.  c.  10,  by  which  parsons  and 
vicars  are  restrained  from  making  any  conveyances  of  the  estate 
of  their  churches,  other  than  for  their  lives,  or  twenty-one  years,  is  Eliz.  c  10. 
so  that  no  composition  created  since  that  time  can  be  supported 
against  the  successor,  though  confirmed  by  a  decree  of  the  Court 
of  Chancery.  To  prove  a  composition  with  a  lay  person,  how- 
ever, the  instrument  itself  whereby  the  composition  was  made, 
should  be  shewn,  either  by  its  production,  or  some  evidence  of 
its  former  existence,  for  no  presumption  is  admitted  of  it  by 
mere  non-payment  or  reputation. (1)  (i)  2  Wood, 

4thly.  By  order,  as  the  templars,  cistericans,  and  hospitallers  q^'^ij,"];^ 
o^  Jerusalem  ;  these,  however,  were  exempted  only  durmg  such  649;  ami  Hob, 
time  as  the  lands  were  in  their  own  occupation  and  manurance.j^plj^  Pi^'.'gp 
To  entitle  lands  to   this   exemption,  it  is  necessary  that  they  1  Price, 253. 
should  have  been  in  the  hands  of  those  orders  before  the  coun- 
cil of  Za/eran  (1179  ;)  and  if  such  lands  have  ever  paid  tithes 
it  will  induce  a  presumption  that  they  were  purchased  by  them 
after  that  time<2)     Another  restriction   on  this  exemption  is, ^p^  "jl" r  *';: 
that  the  lands  are  only  privileged  white  in  the  hands  of  the  per- 22. 
son  who  has  an  estate  of  inheritance  in  them  as  a  tenant  in  fee,,s  ,,r., 

(.3)  Wilson  r, 

or  in  tail, (3)  for  a  mere  lessee  for  life  or  for  years    unless  hold- Redman, 
ing  immediately  under  the  crown, )(4)  is  chargeable  in   respect''""''  ^'*' 
of  them  during  his  occupation.  ^^-^  Owen,  46 

But  the  Statute  of  Hen.  8,  has  introduced  another  exemption  Hob.  298, 
which  did  not  exist  before  it,  and  that  is,  where  there  was  a  unity 
of  possession  by  the  religious  house,  of  the  parsonage  and  the 
land  which  is  attempted  to  be  charged,  provided  that  such  unity 
existed  from  time  immemorial,  and  that  no  tithe  was  paid  for  it 
by  the  abbot  or  his  farmer  ;  for  if  united  within  time  of  memory, 
or  tithe  has  been  paid,  it  is  not  discharged  by  the  Statute.  How- 
ever, in  this  case,  as  in  former,  if  the  unity  be  proved,  and  the 
time  of  the  union  cannotbe  ascertained,  and  there  is  no  evidence 
of  tithes  having  been  paid,  the  presumption  will  be  in  favour  of 


/ 


033  ACTIONS  B?  AND  AGAINST 

Part  11.     its  exemption.(l)     This,  therefore,  is  in  effect  the  same  as  adis- 
Uihes.""^    charge  by  prescription,  and  when  put  specially  on  the  record 
________  may  be  so  pleaded. 


(i)Saville,  It  may  be  proper  to  observe  on  these  several  modes  of  exemp- 
^:    -  tion,  that  they  extend  only  to  such  lands  as  came  to  the  crown 

299.  by  virtue  of  the  Statute  of  31  &  32  Hen.  8,  and  not  to  such  as 

came  to  it  either  by  27  Hen.  8,  c.  28,  which  dissolved  the  lesser 
Fols^eS:  ^'^'  abbeys,  or  by  1  Edw.  6,  c.  14.(2) 

Franklin,  Sir       The  fact  of  the  lands  belonging  to  a  monastery,  &c.  is  gene- 
sis. ^^™        rally  proved  by  the  survey  of  their  lands  at  or  soon  after  the 
Ante,  127.      time  of  their  dissolution,  or  by  some  other  public  document,  the 
evidence  and  effect  of  which  have  been  before  taken  notice  of. 
Most  of  the  documents  are  to  be  found  either  in  the  Augmenta- 
tion Office  or  Chapter  House. 

VifleBul.N.      Another  defence,  which  may  be  made  to  actions  of  this  kind, 

P.  191.  .  .  , 

1  Ves.  117.     IS  where  barren  lands  are  newly  inclosed.     These  are  exempted 

for  seven  years,  by  the  before-mentioned  Statute  of  Edw.  6,  but, 

Le  Davids"     ^^  support  this  defence,  it  must  be  proved,  that  the  land  is  ut- 

Exch.  Hii.T.  terly  barren  and  unprofitable.     Land  which  whfen  cleared  will 

wliliams        immediately  yield   a  crop  without  any  extraordinary  manure, 

Ser.  though  the  cultivation  is  attended  with  considerable  expense,  is 

Die*^Dismes    ^^^^^^  to^tithe  ;(3)  and,  therefore,  a  warren  or  sheep  walk  which 

(H.  15.  is  ploughed,  a  wood  which  is  grubbed  and  then  sown  with  corn, 

(4)  Warwick  i^Qfj  recovered  from  the  sea,  or  drained,  cannot  claim  this  ex- 

V.  Collins,  2  .  '  ' 

M.  &  S.  349.  emption,  unless  they  are  so  bad  in  themselves  as  to  require  an 
166  S  c  extraordinary  expense  of  manure  or  labour(4)  before  they  will 
which  see.      produce  any  crop. 


SECTION  III. 

In  the  (tctionfor  dilapidations. 

Sect.  3.  In  the  action  for  dilapidations  of  the  parsonage-house  or  build- 

Diiapi'jations.  ^"g^,  brought  against  the  predecessor  of  the  plaintiff,  or  his  exe- 

. cutor,  the  plaintiff  must,  in  the  first  place,  prove  his  own  title, 

by  the  same  means  as  are  pointed  out  in  the  case  of  an  eject- 
ment for  the  rectory,  or  action  for  not  setting  out  tithes.  He 
must  then  prove  that  the  defendant  or  his  testator  was  possess- 
ed of  the  living,  and  this  possession  may  be  proved  by  the  cir- 
cumstance of  his  acting  as  parson,  by  preaching,  taking  tithe,  &c. 


I 


ECCLESIASTICAL  PERSONS.  633 

Lastly,  the  plaintiff  must  prove  the  state  of  the  buildings  at  theCh  X\i.  s.  3. 
time  of  the  resignation  of  the  defendant,  or  death  of  his  testator,  (i,iapXio°ns, 
and  the  money  which  either  has  been,  or  necessarily  must  be  ex-  ,- 

pended  to  put  them  in  a  proper  state  of  repair.  As  to  the  stajte  vide  3  Bar. 
of  the  repairs,  at  the  time  when  the  defendant  came  into  pos-  ^^'^^-  ^^'*'> 
session,  it  see'ns  not  to  be  material,  if,  as  has  been  said,  iie  is 
answerable  for  the  whole  dilapidations,  whether  arising  in  his 
own  time  or  before. ;  but,  as  this  has  never  been  judicially  de- 
cided, it  may,  when  evidence  of  that  fact  can  be  adduced,  be  pro- 
per to  be  prepared  with  it. 


SECTION  IV. 

In  the  action  for  non-residence. 

The  first  Statute  which  authorised  the  temporal  Courts  to     Sect.  4. 
take  cognisance  of,  and   enforce   the  residence  of  the  clergy,    Action  fm- 
was  the  21  Hen.  8,  c.  13,  whereby  it  was  enacted,  that  as  well       dence, 

all  and  every  person  then  being  promoted  to  any  archdeaconry,  

deanery,  or  dignity  in  any  monastery,  or  cathedral  church,  or 
other  church,  conventual  or  collegiate,  or  being  beneficed  with 
any  parsonage  or  vicarage,  as  all  and  every  spiritual  person  and 
persons  which  thereafter  should  be  promoted  to  any  of  the  said 
dignities  or  benefices,  with  any  parsonage  or  vicarage,  should 
be  resident  and  abiding  in,  at,  and  upon  his  said  dignity,  prebend, 
or  benefice,  or  at  one  of  them  at  the  least;  and  in  case  he  should 
not  keep  residence  at  one  of  them,  as  aforesaid,  but  absent 
himself  wilfully  by  the  space  of  one  month  together,  or  by  the 
space  of  two  months,  to  be  at  several  times  in  any  one  year, 
and  make  his  residence  and  abiding  in  any  other  places  by  such 
time,  he  should  forfeit,  for  every  such  default,  lOZ.  half  to  the 
King,  and  half  to  him  that  would  sue  for  the  same.* 


*  It  is  provitled  thai  this  Act  shall  not  exteinl  to  certain  persons  excepted  out  of 
it,  and,  amongst  others,  scliolars  aljiding  for  study,  without  fi':»ud  or  covin,  at  any 
university,  and  chaplains  to  the  king,  queen,  and  oth'T  persons  named  in  the  Act, 
during  the  time  ol"  their  altendaiice. 

The  Slat  25  Hen.  8,  c.  16,  extended  the  exemption  to  the  chaplains  of  the  Judges 
and  of  the  attorney  and  solicitor  general,  residing  in  their  houses  ;  and  the  2S  ffett 
8,  c.  13,  narrowed  the  excmpliori  of  stud  nts  at  the  univeriiy  to  such  as  were  un- 
der forty  years  of  age,  and  who  were  present  at  the  ordinary  lecture,  &c.  saving 

4  M 


634 


ACTIONS  BY  AND  AGAINSI 


Pa.  t  II. 

Actions  for 
non-resi- 
dence. 


Thus  stood  the  law  on  this  subject  till  very  lately,  when  - 
great  number  of  actions  having  been  brought  by  common  inform- 
ers against  clergymen  for  non-residence,  some  of  which  were 
very  vexatious  and  oppressive,  the  legislature  thought  proper  to 
suspend  such  actions  from  time  to  time,  till  the  law  on  this  sub- 
ject should  be  well  considered,  and  some  further  provisions  in- 
troduced ;  and  at  length  a  Statute  was  passed  (45  Geo.  3,  c. 
84,)  whereby  (s.  12,)  so  much  of  the  Act  of  21  Hen.  8,  as  im- 
poses the  penalty  of  10/.  on  persons  therein  described  who  shall 
not  reside,  &,c.  v/as  repealed,  and  further  provisions  enacted. 
The  Statute  was  itself  repealed  by  another  Act,  also  made  in 
the  late  King's  reign  ;  and  now  by  Statute  57  Geo.  3,  c.  99,  s. 
5,  it  is  enacted,  that  thenceforth  every  spiritual  person,  holding 
any  benefice,  who  shall,  without  such  license  or  exemption  as  iu 
this  Act  allowed  for  that  purpose,  wilfully  absent  himself  there- 
from for  any  period  exceeding  the  space  of  three  months  togc 
ther,  or  to  be  accounted  at  several  times  in  any  one  year  ;*  and 
make  his  residence  and  abiding  at  any  other  place  or  places, 
except  at  some  other  benefice,  donative,  perpetual  curacy,  or 
parochial  chapelry,  of  which  he  may  be  possessed,  shall,  when 
such  absence  shall  exceed  such  period  as  aforesaid,  and  not  ex- 
ceed six  months,  forfeit  and  pay  one-third  of  the  annual  value 
(deducting  therefrom  all  outgoings,  except  any  stipend  paid  to 
any  curate,)  of  the  benefice,  donative,  perpetual'  curacy,  or  pa- 
rochial chapelry,  from   which  he  shall  so  absent  himself:  and, 


however,  tlie  privilt-ge  of  the  Chancellor,  and  other  officers  of  the  university,  tiiough 
above  that  .<(ge. 

The  exemptions  were  again  extended  by  the  Stat.  S3  Hen.  8,  c.  28,  to  one  chap- 
lain of  Ujc  Chancellor  of  the  Duchy  of  Zancas?er,  and  of  other  officers  therein  men- 
tioned, residing  in  their  houses,  and  attendant  on  their  persons.  But  it  was  pro- 
vided by  the  latter  Statute,  that  such  chaplains  should  repair  twice  a  year  at  the  least 
to  their  benefices,  and  there  abide  eight  days,  at  each  lime,  to  visit  and  instruct  theii.- 
cure,  on  pain  of  forty  shillings,  &c. 

Most  ol  these  exemptions  were  continued,  and  some  others  added,  by  the  Stal. 
of  4.3  Geo.  3,  s.  15,  and  57  Geo.  3,  s.  10,  and  the  chaplain  of  the  House  of  Com- 
mons added  to  the  number;  but  the  privilege  of  non-roeidence  at  the  university  is 
confined  to  persons  under  the  age  of  thirty  years. 

•  On  these  words,  in  the  Slat  of  43  Geo.  3,  the  Courts  of  King  Bench  and  Com* 
mon  Pleas  both  held,  that  the  Legislature  intended  a  year  from  the  time  when  the 
action  was  commenced,  [Hardy  v.  Cathcart,  2  Taunt,  2.  S.  C.  in  error  2  Jlf.  l^ 
S.  534  ;)  but  by  the  last  Stat.  (s.  38,)  it  is  enacted,  that,  for  all  the  purposes  of  the 
Act,  the  year  shall  be  deemed  to  corarnence  on  the  1st  January,  and  be  reckoned 
therefrom  to  31st  December,  both  inclusive  ;  and  that,  (s.  39,)  for  all  the  purposes 
of  the  Act,  a  month  shall  be  deemed  a  calendar  month,  except  where  a  month  or 
months  is  or  are  lo  be  made  up  of  different  periods,  ia  which  case  thirty  days  shall 
fie  deemed  a  moatb. 


ECCLESIASTICAL  PERSONS. 


635 


Actions  tor 
non-resi- 
dence. 


when  such  absence  shall  exceed  six  months,  and  not  exceed  Ch.  XVI. s.  4, 
eight  months,  one-half  of  such  annual  value  ;  and,  when  such 
absence  shall  exceed  eight  months,  two-thirds  of  such  annual 
value ;  and,  when  it  shall  have  been  for  the  whole  year,  three- 
fourths  of  such  annual  value;  the  whole  penalties  are  given  to 
the  informer.  But  it  is  provided  by  sect.  18,  that  no  parsonage 
that  has  a  vicar  endowed,  or  perpetual  curate,  and  having  no 
cure  of  souls,  shall  be  deemed  or  taken  to  be  a  benefice  within 
the  intent  and  meaning  of  the  Act.  It  is  provided  by  sect.  6, 
that  where  there  is  no  house  belonging  to  the  benefice,  a  resi- 
dence within  the  limits  of  the  parish  shall  be  sufficient:  and  by 
sect.  7,  that  when  the  governors  of  Queen  Anne's  bounty  have 
purchased,  or  shall  purchase  houses  not  situated  within  the  pa- 
rish, but  so  sufficiently  contiguous  and  suitable,  as  to  be  conve- 
nient for  the  residence  of  the  clergyman,  such  houses  having 
been  previously  approved  by  the  bishop,  by  writing  under  his 
hand  and  seal,  and  duly  registered,  &c.  shall  be  deemed  houses 
of  residence. 

Sect.  8,  provides,  that  on  rectories,  having  vicarages  endow- 
ed, the  residence  of  the  vicar  in  the  rectory  house  shall  be  deem- 
ed a  legal  residence,  provided  that  the  vicarage  house  be  kept 
in  proper  repair  to  the  satisfaction  of  the  bishop. 

And  by  sect.  9,  that  the  bishop  may,  in  every  case  where 
there  shall  not  be  a  house  of  residence  belonging  to  the  benefice, 
allow  and  adjudge  any  fit  house  within  the  limits  of  the  bene- 
fices, and  belonging  thereto,  or  any  fit  house  belonging  thereto, 
not  within  the  limits,  but  so  contiguous  as  to  be  sufficiently  con- 
venient for  the  purpose,  to  be  the  house  of  residence  thereof; 
and  such  allowance  and  adjudication  in  writing,  &c.  shall  be 
registered  from  time  to  time,  and  be  deemed  the  house  of  resi- 
dence for  the  time  being. 

By  sect.  11,  it  is  provided,  that  it  shall  be  lawful  for  any  per- 
son, being  dean,  during  such  time  as  he  shall  reside  on  his  dean- 
ery, or  being  prebendary  or  canon,  or  holding  any  other  dignity 
in  any  cathedral  or  collegiate  church,  who  shall  reside  any  pe- 
riod not  exceeding,  four  monlhs  altogether  witliin  the  year  upon 
such  dignity,  to  account  such  residence  as  if  he  had  legally  re- 
sided on  some  benefice  ;  and  that  it  shall  be  lawful  for  any  spi- 
ritual person,  having  or  holding  any  prebend,  canonry,  or  dig- 
nity, in  any  cathedral  or  collegiate  church,  in  which  the  year, 
for  the  purposes  of  residence,  is  accounted  to  commence  ai  any 
other  period  than  the  1st  of  January,  and  who  may  keep  the 
periods  of  residence  required  for  two  successive  years  at  such 


636  ACTIONS  BY  AND  AGAINST 

Part.  II.      cathedral  or  collegiate  church,  in  whole  or  in  part,  between  the 
Don-resi-'    ^^^  of  January  and  the  31st  December,  in  any  one  year,  to  ac 
dence.      count  such  residence,  although  exceeding  four  months  in  the 

—' year,  as  reckoned  from  the  1st  of  Ja/iwar^  to  the  3 1  &t  December, 

as  if  he  had  legally  resided  on  some  benefice.  And  the  bishop 
is  further  empowered  (sect.  12,)  to  license  any  longer  period  of 
noH-residence  upon  any  such  benefice  of  any  prebendary,  ca- 
non, or  other  person,  holding  any  dignity  in  any  cathedral  or 
collegiate  church,  in  any  case  in  which  it  shall  appear  to  him, 
from  his  own  knowledge  (if  such  cathedral  or  collegiate  church 
is  locally  situate  within  his  own  diocese,  or  if  not,  by  the  certifi- 
cate of  the  bishop  of  the  diocese  in  which  the  cathedral  or  colle- 
giate chuich  shall  be  locally  situate,)  to  be  required  for  the  per- 
formance of  any  duties  in  any  such  cathedral  or  collegiate 
church  ;  provided  that  every  such  spiritual  person  shall,  during 
such  period,  reside  on  such  prebend,  &c. ;  and  a  general  proviso 
is  added,  (sect.  13,)  in  favour  of  any  prebendary,  &c.  appointed 
before  the  making  the  Act,  while  actually  resident. 

By  the  14th  sect,  a  person  having  a  house  of  residence  upon 
his  benefice,  and  who  shall  not  reside  thereon,  is  required  dur- 
ing such  period  or  periods  of  non-residence,  whether  the  same 
shall  be  for  the  whole  or  part  of  any  year,  to  keep  such  house 
of  residence  in  good  and  sufficient  repair ;  and  not  doing  so, 
and  upon  monition  issued  by  the  bishop,  not  putting  the  same 
in  repair-  according  to  the  requisition  of  the  monition,  within 
the  time  specified  therein,  to  the  satisfaction  of  the  bishop,  and 
to  be  certified  to  him  upon  such  s.urvey  and  report  as  shall  be 
required  by  him,  is  made  liable  to  all  penalties  for  non-resi- 
dence, notwithstanding  any  exemption  or  license  during  the  pe- 
riod of  such  house  of  residence  remaining  out  of  repair,  and  un- 
til the  same  shall  have  been  put  into  good  and  sufficient  repair, 
to  the  satisfaction  of  the  bishop. 

The  several  sections,  from  the  15th  to  the  23d,  contain  various 
regulations  as  io  licenses  for  non-residence  to  be  granted  by 
bishops,  in  certain  cases,  and  by  them  with  the  sanction  and  al- 
lowance of  the  archbishops  in  others ;  and  by  the  23d  section, 
every  person  who  shall  be  non-resident  by  reason  of  any  resi- 
dence on  another  benifice,  or  of  any  exemption,  to  entitle  him 
to  obtain  which  it  is  not  necessary  to  have  a  license,  sliall,  within 
six  weeks  after  the  1st  Januurij  in  every  year,  notify  the  same 
in  writing  under  his  hand  to  the  bishop  of  his  diocese. 

The  Statute  (sect.  35,)  further  enacts,  that  no  penalty  shall 
be  recovered  other  than  such  as  may  have  been  incurred  during 


ECCLESIASTICAL  PERSONS.  637 

I     the  year  ending  on  the  31st  day  of  December,  immediately  pre-Ch.XVJ.s.4, 
ceding  the  commencement  of  the  action.     Tiiat  (sect.  37,)  no    ^on""esu'^ 
action  shall  be  commenced  till  the  first  of  May,  after  the  expi-      dence. 

ration  of  that  year;  and  that  (sect.  40,)  a  month's  previous  no-  • 

tice  shall  he  given  to  the  party,  or  left  at  his  dwelling-house, 
containing  the  cause  of  action,  &c.  and  name  of  attorney  en- 
dorsed. That  (sect.  41,)  the  delivery  of  such  notice  shall  be 
proved  on  the  trial  ;  and  (sect.  42,)  that  no  evidence  shall  be 
received  of  any  cause  of  action,  except  such  as  is  contained  in 
the  notice. 

The  43d  sect,  permits  the  defendant  to  pay  into  Court  sucli 
sum  of  money  as  he  shall  think  fit,  subject  to  such  rules  as  in 
other  actions  wherein  the  defendant  is  allowed  to  pay  money 
into  Court;  the  46th  sect,  enables  the  defendant  to  plead  a  mo- 
nition by  the  bisbop  against  him  for  non-residence,  in  case  such 
monition  has  been  issued  against  Him  before  the  service  of  the 
notice.  The  47th  sect,  enacts,  that  no  penalty  shall  be  levied 
against  the  body  of  the  defendant,  where  it  can  be  recovered  by 
sequestration  within  three  years. 

It  is  unnecessary  to  say  more  as  to  the  proof  of  notice,  than 
to  refer  to  what  has  already  been  written  on  that  subject,  when 
speaking  of  actions  against  justices  of  the  peace.  After  that 
preliminary  proof,  he  may  proceed  with  the  rest  of  his  case. 

AVe  have  before  seen,  that  if  an  action  were  brought  on  the  Bevan  r 
Stat,  of  21  Hen.  8,  the  plaintiff*  was  not  put  to  farther  proof  of  ante '  ™^' 
the  defendant  being  beneficed  with  the  living,  from  which  he 
had  absented  himself  than  acts  done  by  himself  as  the  clergy- 
man of  that  place,  such  as  receiving  tithes,  &c.  and  the  same 
evidence  will  still,  1  conceive,  be  suflBcient.     The  plaintiff"  must 
then  prove  the  absence  of  the  defendant  during  the  time  charged.  Canning  v. 
If  there  were  a  parsonage-house,  his   residence  in  any  other  ^^*™^",'  ^ 

'      _  ~  •'2  nrownl.  5* 

house  within  the  parish,  would,  under  the  former  acts,  subject 
him  to  the  penalties  of  the  act,  and  will  still  do  so,  unless  he  has 
the  bishop's  license  for  that  purpose,  according  to  the  directions 
of  the  Statute  ;  or  is  within  the  other  provisions  contained  in 
it.  Lastly,  he  must  prove  the  value  of  the  living,  and  as  this 
would  frequently  be  a  task  of  considerable  difficulty,  the  Statute 
(sect.  44,)  has  provided  that  the  Court  in  which  the  action  is 
depending,  shall,  upon  application  made  for  that  purpose,  re- 
quire  the  bishop  of  the  diocese  to  certify  in  writing  under  his 
hand  to  the  Court,  and  also  to  the  paity  named  in  tlie  rule,  the 
reputed  annual  value  of  the  living,  which  certificate  shall,  in  all 
subsequent  proceedings  in  the  action,  be   received  as  evidence 


g38  ACTIONS  BY  AND  AGAlN^ST,&c. 

Part  II'.     of  the  annual  value,  for  the  purposes  of  the  act,  without  preju 


Actions  lor 
non-resi- 


dice,  nevertheless,  to  the  admissibility  or  effect  of  any  such  othei 
dence.      evidence  as  may  be  offered  or  given  respecting  the  actual  value 

thereof. 

2  Brownl.  55.  fhe  defendant  was  formerly  permitted  to  shew  ill  health,  or 
other  sufficient  reason  to  excuse  his  absence.  But  these  ex- 
cuses are  all  now  settled  by  the  positive  terms  of  the  act.  He 
cannot,  when  not  exempted,  be  permitted  to  shew  any  other 
cause,  without  license  of  the  bishop  ;  and,  if  he  has  obtained 
such  license,  which  can  only  be  granted  upon  evidence  laid  be- 
fore the  bishop,  the  license  itself  will  be  sufficient  evidence  for 
the  defendant  in  the  actioti,  and,  if  pleaded,  will,  by  the  45th 
section,  entitle  him  to  double  costs,  in  case  a  verdict  be  found 
for  him.  In  cases  where  the  defendant  is  exempted  without 
the  aid  of  a  license,  he  must  prove  his  exemption,  by  proving 
his  appointment  as  chaplain,  &c.  and  that  he  has  duly  resided 
according  to  the  several  acts  ;  and  must  also  prove  the  delivery 
of  his  notification  thereof  to  the  bishop.  To  shew  this  fact,  he 
should  prove  the  actual  delivery  of  it  to  the  bishop,  by  having 
the  original  brought  from  the  registry ;  for  the  provisions  con- 
tained in  the  Stat,  of  48  Geo.  3,  s.  25,  whereby  the  defendant, 
having  delivered  a  duplicate  to  the  registrar  of  the  diocese,  and 
got  a  copy  certified  by  such  registrar,  might  use  such  copy  as 
sufficient  evidence  of  his  having  made  such  notification,  does 
not  appear  to  have  found  a  place  in  the  last  Act  of  Parliament- 


(  639  ) 


CHAP.  XVII. 

OF  THE  EVIDENCE  IN   COPYHOLD   CASES. 

To  maintain  an  ejectment  for  a  copyhold  tenement,  the  lessor    (^^^   j^yjf 
of  the  plaintiff  must  produce  the  rolls  of  the  manor,  which  shew    Ejectment 
a  surrender  to  him,  or  those  under  whom  he  claims  ;  and,  in  ge-   °'  ^°^^  '° 
neral,  his  own  admittance  is  necessary  to  complete  his  title.(l) ,,,  ,. 

.       ,     .        ^  ,  ,  ,         -^  ,  "^    ,  .         .       \   '  (I)  Kumney 

An  neir-at-law,  however,  may  make  a  lease,  and   maintain  the  v.  Eves,  i 
action  before  admittance  ;  and  where  a  tenant  for  life  has  been[<''"";  *'^" 

J      .  .  .  .      Lfoe  (leni. 

admitted,  upon  the  surrender  granting  that  estate,  his  admit- I'm  rant  r. 
tance  operates  as  the  admittance  of  the  remainder-man,  named {j.^p'^g,/ 
in  the  same  instrument  also,  for  it  is  but  one  estate. (2)     So  if 
^.  and  B.  be  in  possession  by  virtue  of  a  grant  for  tlxeir  lives,  ^_^u"|lg[„'"'^ 
and  the  lord  grants  to  C.   for  life,  from  and  after  the  deaths  of^'i'o- Jac  51. 
»*?.  and  B.,  C.  maj-  maintain  an  ejectment  immediately  on  the  (3)  Roeriem. 
death  of  the   survivor,  without  further  admittance. (3)     But  a^osh  t».  Love- 

.  .  .  ^  less,  2  B.  k 

devisee  cannot  maintain  any  action  before  admittance  ;(4)  andA.  4j3. 
if  such  devisee  never  be  admitted,  a  devise  by  him  is  void,  and ,,,  „ 

1      I     •  1  £-1  •    •  (-ijuoedem, 

the  legal  estate  descends  to  the  heir  at  law  01  tue  original  testa-.Kttni-ys  w. 
tor.(5)     So  before  the  Stat.  55  Geo.  3,  c.  192,  (which  takes  away  jy-^ks/.' Wiis.. 
the  necessity  of  surrenders  to  the  use  of  wills,)  if  the  surren- 
deree made  a  surrender  out  of  Court  to  the  use  of  his  will,  be- y j,.,,^^',^  ^,'^'" 
fore  he  had  been  himself  admitted,  such  surrender  was  void,  and  Vernon, 
could  not  be  made  good  by  a  subsequent  admittance, (6)'and  de-'     "*  ' 
visees  of  a   mere  contingent  remainder,  not  being  in  the  seisin,  (<>)  l^^'^ ''c'" 
cannot  make  any  surrender  of  their  interest.(7)     In  a   case, Tdfiei,)^" 
where  a  mortgagee  brought  an  ejectment  and  showed  a  surren- 1'  Kast,  185. 
der  to  him  before  the  day  of  the  demise  laid  in  the  declaration,  (r)  Doedem, 
and  proved  his  admittance  in  consequence,(8)  the  Court  held  '':  p''""''' 
that  he  was  entitled  to  recover,  though,  in  fact,  the  admittance 
was  not  made  till  long  afterwards  ;  for,  when  once  made,  it  relat-  ^,'*^'  ^^°J''"'f 

°  _  '         '  _  (lein.  VV  ool- 

ed  back  to  the  time  of  the  surremler.     In  tiiis  case  the  Court  lam  r.  Clap- 
said,  that  even  if  these  had   been  no  admittance,  yet,  as  against  j?J"' CO,,' 
the  mortgagor,  the  ejectment  would  be  maintainable  ;  assigning 
as   a  reason,  that  the  mortgagor,  being  only  a   trustee   for  the 
mortgagee,  s^iould  not  be  permitted  to  set  up  his  legal  Interest 
against  the  claim  of  his  cestui  qice  trust ;  but  we  have  before  had 
occasion  to  observe,(9)  that  a  different  doctrine  has  since  heen^y^  Yn^c  5js 
established  from  that  which  then  prevailed  respecting  the  action 
of  ejectment. 

It  has  been  before  observed,  ihat  the  Statute  of  Frauds  does 
not  extend  to  v/ills  of  copyhold  lands.     It  is  suflScicnt  in  this 


()4i0  COPYHOLD  CASES. 

Part  II.      ^^^®  ^^'^^  there  is  a  will  in   writing,  though  it  is  neither  signed 
Copyhold     by  the  testator,  nor  attested  by  any  witness  ;  but  what  shall  be 
deemed  sufficient  proof  of  such  will  does  not  appear  to  be  very 


cases. 


-.. ,  „  clearly  ascertained.     It  has  been  said  that  any  written  paper, 

V  ifleCai-ey  1).  -'  ■        ■      ^   /^  r    r      ' 

AsktMi,t2Bro.  which  the  Ecclesiastical  Court  would  hold  to  be  a  will,  shall 
c  Cas.  59.      fjg  considered  as  a  suilicient  declaration  of  the  use  to  which  the 

3  Loxi'  s 

P.  Will.  259.  estate  was  subjected  by  a  surrender  to  the  use  of  a  will  ;  and, 
Doe'tieni  therefore,  it  has  been  usual  not  only  to  prove  the  original  paper 
Cooke  r-.  writing,  but  also  to  produce  the  probate  which  has  been  granted 
7  l"ast'l'ti'J.     ^^  i^ '  ^^^  even  instructions  taken  by  an  attorney  for  the  making 

of  a  will,  when  so  proved,  have  been  hoi  den  sufficient  to  pass  the 

estate. 

In  one  case  a  paper  found  in  the  bureau  of  the  testator  was 

produced.     This  paper  was  all  in  the   testator's   hand-writing, 

and  contained  a  blank  attestation  ;  but  it  was  not  signed  by  the 

Doe  <icm.  .  '.  r 

Smith  f.         testator,  nor  had  any  witness  put  his  name  thereto.     It  was  con- 

rf)"<i^s')'^'*'^^'*  tended  that  the  instrument  appearing  on  the  face  of  it  to  be  an 

Assizes,  1805.  incomplete  thing,  the  Ecclesiastical  Court  would  never  grant 

iieki  c'T"     probate  of  it ;  and,  therefore,  it  was  not  a  will ;  but  that  even  if 

it  were  otherwise,  as  no  probate  had  been  granted,  it  could  not 

be  received  in  evidence,  as  a  will,  within  the  meaning  of  the 

surrender.     The  learned  Judge  who  tried  the  cause  rejected  the 

evidence  altogether,  and  as  there  had  been  no  probate,  would  not 

suffer  any  witness  to  be  examined  in  support  of  the  paper,  but 

the  Court  of  King's  Bench  afterwards  granted  a  new  trial ;  and 

the  devisee  making  no  defence  thereon,  the  point  was  not  further 

discussed.     From  this  decision  of  the  Court  of  King's  Bench, 

however,  it  seems  to  have  been  the  opinion  of  that  Court,  that 

the  Courts  of  Common  Law  may  enter  into  the  question,  whether 

the  paper  amounts  to  a  will,  though  no  probate  has  been  in  fact 

granted;  and,  indeed,  where  the  will  is  merely  of  the  copy-hold 

land  and  no  personality  is  bequeathed,  the   whole  must  depend 

on  the  paper  itself,  for  the  Ecclesiastical  Courts  never  could 

ViJe  Sackviil  ^^^^  cognisance  of  it.     To  this  we  may  add,  that  in  the  cases 

V.  Brown,       before  the  Statute  of  Frauds,  wherein  il  came  to  be  a  question 

NHsh'v."         what  should  be  a  will  of  lands  under  the  Statute  of  Wills,  32 

K.inmixis,       ffgn,  g,  c.  31,  (and  which  cases  seem  to  be  most  applicable  to  the 

Cro.Eliz.  100.  ■     '^  ,  ,  r  1  .      c 

('2)  Vide?  present  point(2)  no  argument  was  drawn  Irom  thef  grant  oi  pro- 
East,  324.  bate  by  the  Ecclesiastical  Court,  but  the  Common  law  Courts 
themselves  decided  what  was  a  will,  without  the  aid  of  their 
construction.  In  those  cases,  as  in  the  present,  any  disposition 
of  the  estate  by  writing,  whether  such  writing  were  made  by  the 
testator  himself,  or  by  any  other  person  by  his  commandment  or 
consent,  was  holden  to  be  a  will  w  ithin  the  meaning  of  the  Statute. 


COPYHOLD  CASES.  g^j[ 

But  where  the  testator  merely  told  the  witness,  that  a  third   oh.XVir. 
person  should  have  his  land,  and  the  witness  recited  the  words     *^"P)*iol'l 

'  cases. 

of  the  intended  will  to  the  testator,  and  asked  him  if  this  should  


be  his  will,  to  which  he  assented  ;   and  the   witness  afterwards  N,,gj,  „ 
put  it  into  writing;,  but  never  shewed  the  writing  to  the  testator, '■''^'"""<ls. 

Cro.  Eilz 

or  read  it  to  him,  this  was  determined  not  to  be  a  good  will,  as  loo. 
not  being  made  in  ivriting  by  the  testator. 

When  the  Lord  himself  claims  the  estate,  as  forfeited  by  rea  Read  v.  AI- 
son  of  a  lease  made  by  the  defendant,  he  must  prove,  that  the(^"^,^f,g  q^^^ 
person  who  is  alles-ed  to  have  committed  the  forfeiture  was  ad-Circ.  17.30. 

.  .  Bui   N   P 

mitted  tenant  on  the  Rolls  of  the  manor.     It  will  not  be  suffi-^gz  • 
cient,  in  this  case,   to  prove  that  his  father  was  admitted,  andyideeiiam 
that  the  land  descended  to  him,  and  that  he  has  paid  quit  rents; -^"^''5°"'  ^^■ 
for,  though   he  might  enter   to  make  a  lease  before  admittance, 
nothing  vested  in  him  which  he  could  forfeit  before   admittance 
and  entry. 

Another  case,  in  which  very  strict  evidence  has  been  required, 
is,  when  the  Lord  seizes  the  land  as  forfeited  for  want  of  the 
heir  coming  in  to  be  admitted.  Tn  this  case  it  has  been  said, 
that  the  proclamation  should  be  proved  by  viva  voce  evidence, 
and  that  the  entry  thereof  on  the  Court  Rolls  is  not  sufficient. (1)  (i)  Lord  Sa- 
lt should  be  observed,  however,  that  this  point  is  not  mentioned  4  Keb!  W^.*^* 
in  another  report  of  the  same  case  ;(2)  and  in  a  late  case,(3) 

u  u        1   •  ^  u       -1  +    1  (2)1  Lev.  63 

where  such  a  claim  was  set  up,  no  such  evidence  appears  to  nave 

been  required.     It  was  determined  in  that  case  that  the  Lord  (J)  '^'"'  ''^''"• 
could  not  seize  absolutely  pro  dejeciu  tenenhs  without  a  special  fieiiiei,  r, 
custom  authorising  him  so  to  do;  and,  therefore,  to  support  a^-  ^'^''-  '*''^- 
seizure  so  made,  it  will  be  necessary  to  prove  such  a  custom. 

To  prove  the  custom  of  a  manor,  the  first  evidence  to   be  re- Vide  ante, 
ferred  to  will  be  the  Court  Rolls,  and  on  the  antiquity  and  uni- 
formity of  these  will,  in  a  great  measure,  depend  the  validity  of 
the  custom.     If  a  payment  be  claimed  by  the  Lord,  as  an  ancient 
and  accustomed  payment,  the  books  of  the  steward  or  bailiff  of 
tlie  manor,  whereby  he  charges  himself  with  monies  received, 
may  also  be  produced  ;(4)  but,  unless  it  appear  that  such  a  sum  (4)  t2  Vfi, 
of  money  has  been  from  time  to  time  paid  by  the  tenants,  the'^^'P^-^ 
mere  entry  by  the  stewards  is  very  weak  evidence.     So  where 
the  question  was,  whether  the  lord  was  entitled  to  the  coals  un- 
der a  freehold  tenement  within  the  manor,  parol  evidence  was 
received  of  a  known  distinction  within  the  manor,  between  old 

•  Mr.  .J.  BuLLEn  also  cites  1  Lord  Raym.  72G,  in  the  margin  ;  but,  as  tins  liooJc 
does  not  contain  any  thing  as  to  this  point,  I  jircsume  it  wa?  estahlishe<l  in  Read  v. 
Alkii. 

4N 


64:3  eOPYHOLD  CASES 

Part  II.      and  new  land,  and  the  general  reputation  that  the  right  of  coals 

^ca£°''*    ""^er  the  latter  belonged  to  the  Lord.(l)     And,  indeed,  in  all 

______  cases  of  custom,  as  many  instances  as  possible  of  its  having  been 

[1)  Burnes  acted  upon  should  be  produced,(2)  though  we  have  before  ob- 
i'm'&^s'"77  ^^^^'^^'  ^'^^^  where  a  custom  is  formally  found  by  the  homage, 
and  entered  on  the  rolls,  proof  of  its  having  been  acted  upon,  is 
4^Leolf^'>42  ^^^  absolutely  necessary.(3)  Thus  where  it  is  contended,  that 
and  Mr.  J. '  by  the  custom  of  a  manor  land  shall  descend  to  the  eldest  female 
servationson  ^^'^'*'  general  reputation  of  such  custom,  and  instances  of  its  hav- 
that  Case,  4  ing  SO  descended,  in  some  instances,  are  evidence  proper  to  be 
^^'     '    left  to  a  jury,  though  the  descent  contended  for  in  the  particular 

(3)  Ante,        instance,  is  not  exactly  similar  to  any  of  those  that  are  adduced 

(4)  Doedem.  in  evidence,  as  where  the  estate  is  claimed  by  the  grand  son  of 
Sisson,  an  eldest  sister,  and  the  instances  proved  are  only  of  descents 
Roe'dem^^'  *°  eldest  daughters  and  eldest  sisters.*(4)  And  in  like  manner 
Bennett w.  it  has  been  held,  that  a  single  instance  of  a  surrender  in  fee,  by 
AI  &^S.  92.    ^  tenant  in  special  tail,  of  a  copyhold  estate,  is  evidence  to  prove 

(5)  Roedera.  a  custom  to  bar  entails  by  surrender,  though  the  surrenderor  has 
?ff"^"Q'  not  been  dead  twenty  years,  and  though  one  instance  be  proved 
M.  hi.  '2C0.  of  a  recovery  suffered  by  tenant  in  tail  to  bar  the  entail.(5) 
Lord  North-  When  the  Lord  brings  an  action  for  a  fine  not  exceeding  two 
Avay  G  East '  J^^^^  value  of  the  premises,  on  the  defendant's  admission  to 
56.  them,  the  defendant's  admission,  the  presentment  of  the  homage 

as  to  the  value,  and  proof  of  the  sum  required  by  the  action  hav- 
ing been  demanded  of  the  defendant  by  letter  from  the  stew- 
ard, is  sufficient,  without  further  proof  of  the  fine  having  been 
assessed. 


*  The  case  of  Doc  dem.  Goodiiin  v.  Spray,  I  Term.  Rep.  466,  in  some  measure 
militaies  against  this,  hut  (here  the  Court  seem  rather  to  have  considerefl  the  ques- 
tion as  being  whether  a  custom  that  lands  should  descend  to  the  eldest  sister  vins 
jiroof  that  they  should  go  to  \\\e  eldest  niece;  than  whether  a  custom  that  thei, 
vhoidd go  to  the  eldest fenntle  heir,  with  no  instance  to  support  it  but  the  case  of  sis- 
ters, couhl  be  received  as  evidence  of  a  more  extensive  custom  that  it  sliould  in  all 
cases  go  the  eldest  female  heir  ;  and  it  should  seein  that  where  the  rolls  of  the  ma- 
nor declared  that  " /!!//Za  tcnementa  sunt  parti/nlia  7iec  inter  h<eredes  masctdos  nee 
femellas,''  there  was  evidence  of  such  a  general  custom.  It  is  observable  also,  that 
the  judgment  in  that  case  was  founded  on  what  was  said  by  Coke  C.  J.  in  Ratcliffe 
V.  Chapman's  Case,  i  Leon,  242,  that  the  Court  would  not  give  credit  to  the  custom 
unless  it  hatl  been  put  in  use  ;  wherefore  it  was  concluded,  that  as  no  instance  of 
the  particular  case  was  proved,  the  custom,  if  any,  had  no  weight;  without  consi- 
dering that,  in  the  case  of  Ratcliffe  v.  Chapman,  there  was  evidence  of  descents 
contrary  to  the  supposed  custom,  a  kind  of  proof  which  did  not  exist  in  the  case 
then  before  the  Court;  and  in  the  subsequent  case,  {Roe  dem.  Jiebee  v.  Parker, 
5  T.  Rep.  2C,)  when  Lord  Kf.sios  presided  in  the  Court,  a  custom  entered  on  the 
rolls  waa  held  to  be  sufficient  though  no  instance  of  usage  was  adduced. 


APPENDIX. 


No.  L 

CASES   ON  THE   QUESTION,  HOW   FAR   REPUTATION  IS  ADMISSIBLE 
IN  QUESTIONS   OF  PRIVATE  RIGHT? 


Doe,  Lessee  of  Didshury  Sf  another  v.  Thomas  Sp  others,  14  East, 

323.     (Page  28.) 

In  this  case,  where  a  testator  between  fifty  and  sixty  years 
ago  devised  lands  to  his  son  for  life,  remainder  to  his  grand  son 
for  life,  remainder  to  the  heirs  of  the  body  of  the  grand  son,  re- 
mainder to  the  lessor  of  the  plaintiff  in  tail  ;  between  which  lat- 
ter and  the  defendant,  the  devisee  in  fee  of  the  son,  the  question 
was  whether  the  land  in  dispute,  which  had  been  occupied  by 
the  son  in  the  life-time  of  the  testator,  was  part  of  the  entailed 
estate,  or  had  been  acquired  by  his  own  purchase  :  tlie  Court 
held,  that  evidence  of  reputation  that  the  land  had  belonged  to 
Sir  J.  S.  and  was  purchased  of  him  by  the  first  testator,  is  not 
admissible  ;  though  coupled  with  corroborative  parol  evidence 
that  the  land  belonged  to  Sir  J.  S.  before  the  occupation  of  it 
by  the  son,  and  also  by  a  deed  of  conveyance  of  another  farm  in 
the  same  place  from  the  first  testator  to  a  younger  son  about  the 
same  period,  in  v^hich  it  was  recited  that  the  land  thereby  con- 
veyed had  been  then  lately  purchased,  amongst  other  lands,  by 
the  testator  of  Sir  J,  S. 

Mr.  East  subjoins  the  following  note  to  the  report  of  that 
case : — 

The  admissibiliiy  of  evidence  of  lliis  description  has  been  vexata  guestio  for  many 
years  in  Westminster  Hall;  as  the  following  notes,  which  1  have  taken  from  titioe 
to  time,  will  suffice  to  shew. 

The  following  is  the  same  case  which  is  reported  in  4  Term  Efp.  157',  for  ano- 
ther point  which  came  on  upoft.demurrer,  in  Hil.  31  Ceo.  3,  and  where  the  plain- 
tiff had  leave  to  amend.  ' 


a  APPENDIX. 

^horeiuood  v.  Wood,  JM.  SS  Geo.  3,  B.  R — Trespass  far  breaking  and  entering 
the  plaintiflF's  close  called  Stuamuich  Common,  in  the  parish  of  Alfreton,  in  the 
coiiniy  of  Dcrbij,  and  di;;giiigslones  therein,  and  cm-rying  ihem  away,  &c.  Tlie  de- 
fendant pleaiied,  that  there  are  certain  wastes  or  commons  lying  open  to  one  ano- 
ther, one  called  S'lvanraiick  Comm'jn,  being  in  the  close  in  which,  &c.  the  olher 
called  Stiunicich  Green,  in  Alfreton,  &c.  ;  and  that  hewas  seised  in  tee  of  a  tnes- 
soage  and  lands  in  Alfreton,  in  right  of  which  he  prescribed  for  the  liberty  of  dig- 
ging for  and  carrying  away  all  necessaiy  flags  and  stones  in  Sivan-a'ick  Common, 
and  in  Siua)iivick  Green,  for  the  repair  of  his  houses,  fences,  8cc.  Thi;  plaintiff  re- 
plied, that  he  was  lord  of  the  manor  of  Alfreton,  and  that  the  defendant  of  his  own 
wrong  committed  the  trespass.  The  defendant,  in  his  rejoinder,  insisted  on  his 
prescriptive  right  as  stated  in  the  plea;  on  which  issue  was  joined.  At  the  trial 
before  HoTHlM  B.  at  Derby  assizes,  the  defendant  called  ninny  witnesses,  who 
proved  that,  for  between  sixty  and  seventy  jears  past,  he  anil  those  from  whom  he 
claimed  had  been  in  the  constant  exercise  of  the  right  stated  in  his  pita  ;  in  many 
instances  to  the  knowledge  of  th-  lord,  who  had  threatened  to  bring  actions,  and 
been  dared  to  do  so  by  the  defendant's  ancestors,  who  insisted  on  their  right.  On 
the  olher  hand,  the  plaint ifl" produced  a  presentment  in  1717,  of  the  heehoMers  of 
the  court  baron  of  the  unmor  oi  A  fretoii,  of  which  the  plaintiff  is  lord,  and  v.iiich 
presentment  was  signed  by  one  Robert  JVood,  the  foreman,  and  others  ;  which  n;irae 
of  Robert  Wood  was  proved  to  tally  with  the  snbscription(a)  to  the  will  of  Robert 
Wood,  the  grandfather  from  whom  the  defendant  claimed,  and  which  will  was  pro- 
duced from  the  registry.  One  of  the  items  in  that  ijreseniment  was, — "  If  any  per- 
son gets  stone  without  leave  of  the  lord  of  the  manor,  we  pain  him  10s."  The 
plaintiff  also  called  another  witness  to  prove  that,  in  a  conversation  with  the  defend- 
ant's uncle,  from  whom  the  defendant  also  claimed,  the  uncle  had  admitted  that 
the  lord  of  the  manor  had  the  right,  and  he  would  not  he  beholden  to  him  for  the 
stone.  The  jury  found  for  the  defendant.  Thus  much  appeared  on  the  Judge's 
report,  on  a  motion  for  a  new  trial.  But  the  plaintiff's  counsel  stated  further, 
(which  was  admitted  by  the  other  side,  and  so  taken  by  the  Court,)  that  the  learned 
Judge  had  rejected  other  evidence  which  they  had  tendered,  and  for  which  alone 
the  new  trial  was  moved  for,  viz. 

1st.  Other  presentments  of  a  similar  nature  to  tlie  one  received  in  evidence,  but 
to  which  no  subscription  could  be  proved  by  any  person  from  whom  the  defendant 
tlaimed  :  this  was  offered  as  evidence  oi  reputation. 

2d.  General /)aro/  evidence  of  reputation,  that  none  but  the  lord  had  a  right  to 
dig  stone,  &c.  on  the  locus  in  quo. 

A  rule  nisi  having  been  granted,  Chambre,  Clarke,  Sutton,  Willis,  and  Ascough 
contended,  in  support  of  their  rule,  that  a  general  custom  or  prescription,  covering 
all  the  estates  of  the  tenants  of  the  manor  might  clearly  be  proved  by  evidence  of 
reputation;  and  that  there  was  no  solid  distinction  between  that  case  and  the  case 
of  a  particular  prescription.  There  were  no  title  deeds  in  the  one  case  more  than 
in  the  other,  to  which,  as  to  a  more  certain  criterion,  reference  could  be  had.  In 
both  instances  the  rig'it  rested  on  memory  of  particular  instances  of  the  exercise  of 
it.  In  the  case  of  a  modus,  reputation  is  evidence  ;  and  yet  that  relates  to  a  parti- 
cular estate.  In  the  Bishop  ofjileat/i  v.  Lord  Belfield,  in  1747,  cited  in  Bid.  JV*. 
P.  295,  it  was  held  that  evidence  of  reputation  was  admissible  in  a  quare  impedit, 
that  one  Knight  had  been  in  by  the  presentation  of  Lord  R.;  which  is  a  stronger 
case  than  this.  The  case  of  Webb  v.  Petts,  JVou,  44,  was  clearly  the  case  of  a 
modus  for  a  particular  farm  ;  and  there  the  Court  held  hearsay  evidence  to  be  suffi- 
cient. Such  evidence  as  this  is  also  admissible  in  the  case  of  a  manerial  custom  j 
and  yet  the  public  have  as  little  to  do  with  the  custom  of  a  particular  manor  as  with 


Vide  Roe  v.  Raidings,  7  East,  282, 


APPENDIX.  l\[ 

a  private  prescription.  Other  persons  in  the  parish  may  claim  ihe  same  right  as 
Iht;  iletendaiil,  and  then  it  might  have  been  laid  as  a  custom,  in  which  case  these 
presentments  would  have  been  decisive  evidence  against  it.  So  thai  by  laying  it 
as  a  prescriptive  light  to  eacti  farm,  instead  of  a  custom,  all  the  lord's  proof  of  his 
right  is  gotten  rid  of;  and  the  tenants  may  give  in  evidence  those  very  tortious  acts 
as  evidsjice  of  a  prescription,  all  which  united  together  could  not  have  supported  a 
custom  against  the  positive  written  testimony  subscribed  by  all  their  ancestors  who 
Were  tenants.  Here,  they  said,  there  was  sufficient  to  ground  the  hearsay  evi- 
dence on. 

The  counsel  on  the  other  side  were  not  heard  by  the  Court,  who  made  several 
observations  during  the  argument,  to  which  the  counsel  for  the  plaintiff  adapted 
their  answers.     On  granting  the  rule  7iisi, 

Lord  Kenton',  C  J.  said,  he  doubted  very  much  if  evidence  of  reputation  could 
he  adduced  in  support  of  any  prescription,  unless  it  affected  the  public  interest  in 
some  way  or  other. 

AsHHunsT,  J.  in  the  course  of  the  argument,  said,  that  if  this  hail  been  laid  as  a 
custom,  he  conceived  that  general  reputation  would  have  been  evidence  :  but,  io 
the  case  of  a  private  prescription,  he  doubted  it  very  much. 

ButLEK,  J.  observed,  thai  the  practice  had  been  different  on  diETorent  circaits_ 
On  the  Oxford  it  has  been  the  practice  to  reject,  and  on  ihc  western  circait  to  re- 
ceive this  sort  of  evi(l.ence.  But  upon  llie  latter,!  have  told  the  counsel,  that  I 
would  indeed  receive  such  evidence,  if  they  presseil  it,  but  that,  in  summing  up,  I 
should  tell  the  jury  that  they  were  to  decide  upon  the  other  parts  of  the  case. 

Lord  Kenton,  C.  J.  (after  the  argument.)  The  evidence  given  by  the  defendant 
of  an  usage  of  about  seventy  years  is  extremely  strong  in  his  favour:  and  the  only 
evidence  to  weigh  against  it  is  that  of  the  presentment  signed  by  Robert  Wood  :  but 
that  is  not  necessarily  inconsistent  with  it.  The  lord  might  have  the  general  right, 
and  yet  a  particular  tenement  have  a  prescriptive  right  also.  On  that  ground, 
therefore,  there  is  no  pretence  for  impeaching  the  verdict.  With  respect  to  the 
other  question  raised,  respecting  the  rejection  of  general  evidence  of  reputation,  it 
is  involved  in  great  dispute;  and  one  is  apt  to  imbibe  prejudices  from  the  opinion 
one  has  always  heard  inculcated.  Upon  the  Oxford  circuit,  which  I  went,  such 
evidence  was  never  received ;  and  I  cannot  help  thinking  that  that  practice  is  best 
suppoi^ed  by  principle.  Evidence  of  reputation  upon  general  points  is  receivable, 
because  all  mankind  being  interested  therein,  it  is  natural  to  suppose  that  they 
may  be  conversant  with  the  subjects,  and  that  they  should  discourse  togpther  about 
them,  having  all  the  same  means  of  information.  But  how  can  this  apply  to  pri- 
vate titles,  either  with  regard  to  particular  customs  or  piivate  prescriptions.  How 
is  it  i>ossible  for  strangers  to  know  any  thing  of  what  concerns  only  these  private 
titles?  1  barely,  however,  throw  out  these  hints  as  the  ground  of  my  present  opi- 
nion, laying  in  my  claim  to  change  that  opinion  if  I  should  hear  any  thing  which 
shakes  it. 

AsuHURST,  J.  declared  himself  of  the  same  opinion:  adding,  that  the  utmost 
which  the  e\idence  offered  went  to  prove  in  the  present  case  was  that  the  lord  had 
the  general  right ;  but  that  did  not  negative  a  particular  right,  provided  it  was  made 
out  in  evidence,  which  it  had  been  in  the  present  instance. 

BuLLEB,  J.  I  have  already  mentioned  what  has  been  the  general  practice  on  the 
Oxford  &m\  on  the  western  circuit;  and  as  there  are  two  Judges  from  each  of  those 
circuits  in  Court,*  it  is  hardly  likely  for  us  to  agree  upon  the  general  point.  But 
tlius  far  I  agree  with  my  lord  and  my  brother  AsHtiuRST,  that  in  no  case  ought  evi- 
dence of  reputation  to  be  received,  except  a  foundation  be  first  laid  by  other  evi- 
dence of  the  right.    Now  here  there  was  no  foundation,  or  at  least  a  very  slight 

•  Lord  Kenton  and.AsHHUKST,  J.  had  gone  the  Oxford,  and  BottEii  and  Ghose,  J. , 
the  westero  circuit. 


IV 


APPENDIX . 

one,  ill  comparison  to  the  evidence  given  by  the  defendant.  But  I  cannot  agi'ee  ilia' 
it  ought  not  to  be  received  at  all.  It  was  settled  tliat  it  ought  in  the  cases  cited  in 
argument,  and  also  in  many  other  instances  which  relate  merely  to  private  titles  :  in 
one  in  particular,  as  to  whether  such  a  piece  of  ground  is  parcel  of  one  close  or  ano- 
ther. So  again  in  the  case  of  pedigrees.  But  as  to  this  particular  case,  the  evi- 
dence is  very  strong  with  the  defendant.  It  was  not  proved  that  the  estate  in  ques- 
tion was  in  the  possession  of  the  defendant's  grand  father  at  the  time  he  signed  the 
presentment  which  was  read  in  evidence:  and  even  if  that  were  made  out,  all  the 
evidence  since  for  above  sixty  years  is  the  other  way.  The  defendant's  ancestors 
have  all  that  time  taken  stone  in  defiance  of  the  presentment,  and  in  the  face  of  the 
lord  himself,  who  was  dared  to  bring  any  action  for  it.  Now,  supposing  all  the 
evidence  of  reputation  had  been  received,!  think  it  ought  to  have  weighed  so  slightly 
with  the  jury,  that  the  Court  ought  not  to  grant  a  new  trial.  For  I  do  not  know, 
that  because  evidence  which  ought  to  have  been  received  was  rejected,  therefore 
the  Court  are  bound  to  grant  a  new  trial,  if  they  see  clearly  that  the  verdict  is  right, 
notwithstanding  such  evidence  had  been  admiUed. 

Grose,  J.  was  of  the  same  opinion  as  Bt'LLER  J.  on  the  general  point,  that  evi- 
dence of  reputation  is  to  be  admitted.  I  confess,  he  said,  that  habit  has  so  enured 
my  mind  to  think  it  admissible  in  these  cases,  that  I  cannot  cliange  my  opinion 
■without  much  further  consideration :  though  I  certainly  should  if,  upon  future 
thoughts,  I  should  be  convinced  that  the  practice  of  the  western,  and  I  believe  also 
of  the  northern,  is  wrong.  Once,  indeed,  I  remember,  the  case  of  a  pedigree  tried 
at  Winchester,  where  there  was  a  strong  reputation  throughout  all  the  country  one 
way,  and  a  great  number  of  persons  were  examined  to  it:  but,  after  all,  the  whole 
vas  overturned,  and  proved  to  have  no  foundation  whatever,  by  the  production  of  a 
single  paper  from  the  Herald's  Office;  which  shews,  to  be  sure,  how  cautiously 
this  sort  of  evidence  ought  to  be  admitted. 

Rule  discharged. 

In  the  case  of  Oiitram  v.  Mooreivood,  Ull.  33  Geo.  3,  5  Term.  Rep.  123,  Lord 
Kenton  C.  J.  said,  "  Although  a  general  right  may  be  proved  by  traditionary  evi- 
dence, yet  a  particular  fact  cannot."  The  particular  fact  there  was,  whether  a  cer- 
tain close,  then  called  the  Cow  Close,  had  been  part  of  the  estate  of  Sir/o/w  Zoucft, 
in  the  iSlh  of  Eli z.  out  of  which  certain  rents  and  coals  had  been  reserved  :  and  all 
the  Court  agreed,  that  this  fact  could  not  be  proved  by  entries  made  by  a  third  per- 
son, deceased,  in  his  book  of  receipts  of  rents  from  his  tenant ;  considering  such  en- 
tries as  no  more  than  a  declaration  of  the  fact  made  by  such  third  person  ;  which 
■was  different  from  the  entries  of  a  steward,  who  thereby  charges  himself  with  the 
receipt  of  the  money.  And  Grose,  J.  distinguished  this  from  the  cases  where  tra- 
ditionary evidence  had  been  allowed,  "  because  the  tradition  of  a  particular  fact  is 
not  evidence.'' 

In  J\''icholls  V.  Parker,  Exeter  summer  assizes  1805,  upon  a  question  of  boundary 
between  two  parishes  and  manors,  whether  a  certain  common  was  within  the  parish 
and  manor  of  Holne,  of  which  Sir  Bouchier  IVrey,  bart.  was  lord,  or  within  the 
parish  of  Buckfastleigh  and  manor  oi Mainbo~ui,oi  which  colonel  Parker  was 
lord  :  Le  Blanc,  J.  admitted  evidence  of  what  old  persons,  now  dead,  had  said  con- 
cerning the  boundaries  of  the  parishes  and  manors;  though  not  as  to  particular  facts 
or  transactions.  And  this,  though  these  old  persons  were  parishioners,  and  claimed 
rights  of  common  on  the  wastes,  which  would  be  enlarged  by  their  several  decla- 
rations; there  not  appearing  to  be  any  dispute  at  the  time  respecting  the  right  of 
the  old  persons  making  the  declarations,  at  least  no  litigation  pending;  (for  in  truth, 
the  boundary  had  been  long  in  dispute  between  the  respective  parishes  and  manors, 
and  intersecting  perambulations  had  been  made  both  before  and  after  such  declara- 
tions by  the  respective  parties ;)  so  that  those  persons  could  not  be  considered  as 
having  it  in  view  to  make  eyidence  for  themselves  at  the  time.    Aud  in  support  of 


APPENDDJ, 

the  same  opinion  were  cited,  The  King  v.  The  Inhabitants  of  Hammersmith,  siilings 
at  Jf''estmi7ister  Alter  Hilary  terra  1776,  before  Lord  Mansfield,  C.  J. (c,)  and  a 
case  of  Down  v.  Hole,  at  Taunton,  in  1795,  before  LaWrekce,  J.  in  both  which  the 
same  point  had  been  ruled. 

In  Clotlder  v.  Chapman,  Endgewater  summer  assizes  1805,  in  replevin,  the 
question  was  whether  Street  Hill,  alias  Iveythorne  Hill,  a  waste,  was  parcel  ol  Ivey- 
thorne  Farm,  and  the  soil  and  freehold  of  one  Rooke,  or  not ;  evidence  was  offered 
of  declarations  of  old  persons  deceased,  s>s  to  the  ancient  boundary  of  the  waste  be- 
longing to  Iveythorne  Farm,  that  it  extended  to  the  inclosures  on  the  north  side  of 
the  hill :  and  2  Roll.  Mr.  \sr>,pl.  5,  tit.  Prerogative,  was  cited  in  support  of  it, 
■where  it  was  held  that  such  declarations,  as  to  whether  certain  land  was  parcel  of  a 
manor  or  of  an  estate,  were  deemed  admissible  as  between  subjects,  but  not  as 
against  the  crown:  and  Davies  v.  Peirce,  2  Term.  Rep.  53,  was  also  cited.  But 
Graham,  B.  rejected  the  evidence  in  this  case,  where  the  question  was  not  as  to  the 
boundary  of  a  parish  or  manor,  but  between  one  person's  private  property  and  ano- 
ther. There  was  a  verdict  afterwards  for  the  defendant,  by  whom  this  evidence 
ftad  been  offered,  so  that  the  question  could  not  be  stirred  again. 


No.  II. 

OF  THE  EVIDENCE  TO   SHEW  MISCONDUCT  OR    CONSPIRACY  IN  THE 
INSTITUTION  OF  A  PROSECUTION. 


The  Queen's  Case, — House  of  Lords,  October  17,  182f. 
2  Brod.  ^  Bing.  302. 

The  following  questions  were  proposed  to  the  learned 
Judges : — 

First,  If,  in  the  trial  of  an  indictment  for  a  capital  oiFence,  or 
any  crime,evidence  had  been  given  upon  the  cross-examination  of 
witnesses  examined  in  chief  in  support  thereof,  from  which  it  ap- 
peared Jl.B.  not  examined  as  a  witness,  had  been  employed  by 
the  party  preferring  the  indictment  as  an  agent  to  procure  and 
examine  evidence  and  witnesses  in  support  of  the  indictment, 
and  the  party  indicted  should  propose,  in  the  course  of  defence, 
to  examine  C.  I),  as  a  witness,  to  prove  that  A.  B.  had  offered 
a  bribe  to  E.  F.  in  order  to  induce  him  to  give  testimony  touch- 
ing the  matter  in  the  indictment,  [E.  F  not  being  a  witness 
examined  in  support  of  the  indictment,  or  examined  before  it 
was  so  proposed  to  examine  C.  D.)  would  the  Courts  below,  ac- 
cording to  their  usuage  and  practice,  allow  C.  D  to  be  examined 
for  the  purpose  aforesaid ;  or  could  such  witness,  according  to 


VI  APPENDIX. 

law,  be  so  examined  if  the  counsel  employed  in  support  of  the 
prosecution  objected  to  such  examination  I" 

"  Secondly,  If,  in  the  trial  of  an  indictment  for  a  capital  of- 
fence, or  other  crime,  evidence  had  been  given  upon  the  cross- 
examination  of  witnesses  examined  in  chief  in  support  thereof, 
from  which  it  appeared  that  A.  B.  not  examined  as  a  witness, 
had  been  employed  by  the  party  preferring  the  indictment  as 
an  agfnt  to  procure  and  to  examine  evidence  and  witnesses  in 
support  of  the  indictment,  and  the  party  indicted  should  pro- 
pose in  the  course  of  his  defence  to  examine  G.  H.  as  a  witness 
to  prove  that  ^.  B.  had  offered  him  a  bribe  to  induce  him  to 
bring  papers  belonging  to  the  party  indicted,  (G.  H-.  not  having 
been  examined  as  a  witness  in  support  of  the  indictment,)  would 
the  Courts  below,  according  to  their  usage  and  practice,  allow 
G.  H  to  be  examined  for  the  purpose  aforesaid ;  or  would  such 
witness  according  to  law,  be  so  examined  if  the  counsel  em- 
ployed in  support  of  the  prosecution  objected  to  such  examina- 
tion ?" 

The  learned  Judges  desired  leave  to  withdraw,  which  they 
did,  and  on  their  return  prayed  for  further  time  to  consider  on 
these  questions  till  the  next  day:  leave  was  granted  according- 
ly ;  and  a  third  question  was  proposed  to  them,  which  on  the 
next  day  was  withdrawn,  not  being  sufficiently  clear,  and  the 
following  question  proposed  in  its  stead  : — 

"Supposing,  that  according  to  the  rules  of  law,  evidence  of  a 
conspiracy  against  a  defendant  for  any  indictable  offence  ought 
not  to  be  admitted  to  convict  or  criminate  him,  unless  as  it  may 
apply  to  himself  or  to  an  agent  employed  by  him,  may  not  ge- 
neral evidence,  nevertheless,  of  the  existence  of  the  conspiracy 
charged  upon  the  record,  be  received  in  the  first  instance,  though 
it  cannot  affect  such  defendant  unless  brought  home  to  him,  or 
to  an  agent  employed  by  him  ;  and  whether  the  same  rule  would 
apply  if  a  defendant  sought  by  such  general  evidence,  in  the  first 
instance,  to  affect  the  prosecutor  with  a  conspiracy  to  suborn 
witnesses  for  the  destruction  of  his  defence  ?" 
Oct.  18th  On  this  day,  Abbott,  C.  J.  delivered  the  following  answer  to 

the  house. 

"  My  lords,  the  Judges  conferred  together  for  some  time  yes- 
terday, upon  the  questions  proposed  to  them  by  your  lordships, 
and  afterwards  separated  in  order  to  consider  them  apart,  and 
met  again  early  this  morning,  and  again  conferred  together  upon 
i  them.    All  of  us  then  agreed  upon  the  answers  to  be  given  to 

the  questions  proposed  to  us ;  and  I,  having  read  to  my  learned 


APPENDIX.  yit 

brothers  the  writing,  which  I  had  prepared,  as  containing  my 
own  sentiments  and  answer,  it  was  found  that  they  concurred 
therein  ;  and  1  have  their  authority,  with  your  lordships's  per- 
mission, to  deliver  what  I  have  written,  (which  your  lordships 
will  observe  is  in  the  singular  number,  being  originally  prepared 
as  my  own  alone,)  as  containing  and  expressing  their  sentiments 
also. 

"  My  lords,  the  first  question  proposed  by  your  lordships  is  in 
these  words,  [here  his  lordship  repeated  the  first  question.']  My 
lords,  the  question  thus  proposed  by  your  lordships  to  the  Judges, 
must  be  admitted  by  all  persons  to  be  a  question  of  great  im- 
portance, as  it  regards  the  administration  of  justice  ;  and  it  is 
to  me  a  question  entirely  new,  and  of  very  difficult  solution.  I 
have  considered  it  with  all  the  attention  due  to  a  question  pro- 
posed by  your  lordships,  and  with  an  anxiety  proportioned  to 
the  question  itself;  and  it  is  not  without  much  diffidence  that  I 
now  offer  to  your  lordships  the  result  of  my  deliberation.  Your 
lordships  will  allow  me  here  to  interpose  an  observation,  and 
to  say,  that  the  diffidence  I  felt  at  the  ..moment  of  writing,  has 
been  considerably  decreased  by  the  knowledge  1  now  have,  that 
my  opinion  and  sentiments  have  i-eceived  the  concurrence  of 
my  learned  brothers. 

"The  question  must,  as  it  appears  to  me,  be  considered  in  the 
same  mode,  and  must  receive  the  same  answer,  as  if  the  parties 
were  reversed :  as  if,  instead  of  proof  offered  on  the  part  of  the 
defendant  respecting  the  conduct  of  an  agent  employed  by  the 
prosecutor,  it  were  proof  offered  in  reply  on  the  part  of  the  pro-  '   " 

secutor  respecting  the  conduct  of  an  agent  employed  by  the 
accused  to  procure  and  examine  evidence  and  witnesses  in  sup- 
port of  his  defence.  If  such  proof  can  be  received  on  the  part 
of  a  defendant,  it  must  be  received  on  the  ground  that  it  may 
lead  to  a  legitimate  inference  and  conclusion,  that  the  witnesses 
examined  against  him,  though  not  appearing  to  have  been  called 
before  the  Court  by  any  undue  means,  are  nevertheless,  on  this 
ground  extraneous  and  foreign  to  them,  not  to  be  considered  as 
the  witnesses  of  truth.  And,  if  such  an  inference  and  conclu- 
sion can  be  reasonably  and  legitimately  drawn  in  favour  of  a 
defendant,  in  the  case  proposed  by  your  lordships,  I  am  unable 
to  discover  any  principle  upon  which  I  may  say,  that  the  like 
conclusion  may  not  be  with  equal  reason  drawn  against  him  in 
the  analogous  case  that  I  have  taken  the  liberty  to  suggest ;  so 
that  proof  of  this  nature,  if  admissible,  must  be  expected  to  lead 
as  frequently  to  the  condemnation  of  an  innocent  man,  by  casting 
4  O 


Viii  APPENDIX. 

discredit  to  his  defence,  as  to  the  acquittal  of  such  a  person  bj 
disgracing  the  prosecution  :  and  this  consideration  enables  mc 
to  contemplate  the  question  proposed  with  more  calmness  than 
I  should  be  able  to  view  a  question  of  which  the  determination 
might  possibly,  by  the  exclusion  of  his  evidence,  lead  to  the  con 
demnation  of  an  innocent  person  ;  but  could  in  no  case  product 
the  same  consequence  by  the  exclusion  of  evidence  against  him. 

"  The  question  proposed  by  your  lordships  regards  the  act  of 
•  a  person  employed  by  the  party  preferring  an  indictment  as  an 
agent  to  procure  and  examine  evidence  and  witnesses  in  support 
of  the  indictment ;'  and  it  regards  the  act  of  that  agent  addressed 
to  a  person  not  examined  as  a  witness  in  support  of  the  indict- 
ment ;  and  leaving,  therefore,  those  witnesses  unaffected  by  the 
pi'oposed  proof  otherwise  than  by  way  of  inference  and  conclu- 
sion, and  this  question  may  be  considered  as  it  regards  the  prose- 
cutor or  party  preferring  the  indictment,  and  as  it  regards  the 
witnesses. 

"  The  prosecutor  has,  by  the  hypothesis,  employed  a  person 
as  an  agent  to  procure  and  examine  evidence  and  witnesses. 
This  is  a  lawful  employment,  necessary  in  many  cases,  in  some 
meritorious,  in  none  disgraceful  or  improper,  if  we  look  either 
to  the  employer,  or  to  the  person  employed ;  and  being  a  lawful 
employment,  it  is  to  be  presumed,  until  the  contrary  be  shewn, 
that  the  employer  means  and  intends  that  his  agent  should  exe- 
cute it  by  lawful  means  ;  and  as,  according  to  the  general  rules 
and  principles  of  law,  a  person  is  not  to  be  affected  in  interest 
or  fame  by  any  act  of  another,  although  that  other  may  have 
been  in  his  employment  or  confidence  as  an  agent  or  otherwise, 
excepting  such  acts  only  as  either  are  in  their  own  nature,  or 
may  by  extrinsic  evidence  be  shewn  to  be  within  the  scope  of 
the  authority  given  by  him,  and  which  may,  therefore,  be  consi- 
dered as  his  acts,  performed  by  the  hand,  or  as  his  declarations, 
uttered  by  the  tongue  of  his  appointed  substitute,)  it  would  be 
contrary  to  those  general  rules  and  principles  to  allow  a  prose- 
cutor, and,  throughJiim,  the  prosecution  that  he  has  instituted, 
to  be  disgraced  b);  the  act  supposed  in  your  lordships  question, 
without  some  further  proof  affecting  him  than  the  terms  of  that 
question  suggest.  It  is  perfectly  consistent  with  the  matters  of 
fact  contained  in  your  lordships  question,  that  the  prosecutor 
mav,  up  to  the  very  moment  when  the  proof  is  offered,  be  wholly 
ignorant  of  the  wicked  act  of  his  agent;  it  is  no  less  consistent, 
that,  having  been  informed  of  the  act,  he  may  have  rejected  it 
with  indignation,  and  have  repudiated  the  proffered  testimony. 


APPENDIX. 

and  withholden  the  witness  from  the  Court ;  and,  if  he  be  absent 
from  the  trial,  which  frequently  happens,  it  may  be  impossible 
to  prove  his  ignorance  in  the  one  case,  or  the  propriety  of  his 
conduct  in  the  other. 

"  With  regard  to  the  witnesses,  my  lords,  which  is  the  most 
important  part  of  this  consideration,  (because  if  false  witnesses 
are  produced  against  a  person,  it  is  of  little  consequence  to  him 
by  what  procurement  they  may  have  been  produced,)  it  is  to  be 
considered,  whether  a  legitimate  inference  and  conclusion  can 
be  drawn  against  their  credit  and  veracity  from  the  proof  pro- 
posed. The  proposed  proof  does  not  directly  affect  them ;  it 
regards  an  act,  to  which,  according  to  the  hypothesis,  they  may 
be  entire  strangers ;  and,  being  an  unlawful  act,  they  are  not  to 
be  presumed  to  have  been  parties  to  it,  or  to  any  other  act  of 
the  like  nature,  without  proof  against  them  ;  they  may  be  per- 
sons of  honour  and  probity  deposing  to  facts  really  and  truly 
occurring  within  their  own  personal  knowledge,  and  taking 
place  within  their  own  sight  and  hearing,  as  they  have  averred 
upon  flieir  oath.  It  may  have  been  intended  that  the  person, 
to  whom  the  bribe  was  offered,  should  speak  to  other  facts  oc- 
curring at  another  time  and  in  another  place  wholly  unconnected 
with  them,  or  with  the  matters  to  which  they  have  deposed  :  can 
it  then  be  reasonably  concluded,  that  the  facts  deposed  by  them 
are  untrue  ?  That,  however  numerous  or  respectable  they  may 
be,  they  must  be  all  wicked  and  perjured  men,  because  some 
other  man  has,  from  overweening  zeal  or  a  corrupt  heart,  wick- 
edly endeavoured  to  seduce  by  money  another  person  to  give 
evidence  touching  the  matter  of  that  indictment  on  which  they 
have  appeared  ?  I  must  say,  my  lords,  that  I  am  of  opinion,  that 
such  a  conclusion  cannot  reasonably  be  drawn,  either  in  the 
case  proposed  in  your  lordships  question,  or  in  the  analogous 
case  which  I  have  taken  the  liberty  to  adduce.  The  utmost 
effect,  in  my  opinion,  of  the  proposed  proof,  (and,  in  many  cases, 
even  this  would  not  be  a  fair  or  reasonable  effect,)  would  be  to 
excite  suspicion  ;  but  suspicion  is  not  a  legitimate  ground  for 
the  verdict  of  a  jury,  which  ought  only  to  be  founded  upon  rea- 
sonable and  probable  proof;  for  these  reasons,  I  think  your  lord- 
ships' first  question  must  be  answered  in  the  negative. 

"  This,  my  lords,  is  the  opinion,  which,  after  much  conside- 
ration, I  have  formed  upon  the  question  proposed  by  the  house. 
The  question  is  couched  in  the  most  general  and  abstract  terms, 
and  your  lordships  must  be,  aware  of  the  difficulty  that  may 
often  occur  in  forming  an  opinion  upon  a  question  of  such  a  na- 


IX 


APPENDIX. 

ture,  applied  not  to  a  matter  of  abstract  science,  but  with  a  mat- 
ter connected  with  the  business  and  affairs  of  men.  Few  cases 
occur  in  the  practical  administration  of  justice,  wherein  a  Judge 
does  not  find  some  help  towards  a  right  decision  in  a  question- 
able point,  in  antecedent  or  accompanying  facts  and  circum- 
stances appearing  before  him,  and  is  not  guided  in  his  applica- 
tion of  general  principles  to  the  individual  case  by  the  particu- 
lars of  that  case  itself.  The  question,  as  proposed  by  your 
lordships,  does  not  contain  any  such  aid  or  guide ;  I  mention 
not  this,  my  lords,  by  way  of  complaint  against  the  question, 
but  by  way  of  excuse  for  the  imperfection  of  my  answer  to  it  j 
and  I  must  beg  leave  to  add,  that  notwithstanding  the  opinion  I 
have  delivered  on  the  question  proposed,  1  am  by  no  means 
prepared  to  say,  that  in  no  case  and  under  no  circumstances 
appearing  at  a  trial,  it  may  not  be  fit  and  proper  for  a  Judge  to 
allow  proof  of  this  nature  to  be  submitted  to  the  consideration 
of  a  jury,  and  the  inclination  of  every  Judge  is  to  admit,  rather 
than  to  exclude,  the  offered  proof. 

"  Secondly,  The  same  reasons  which  have  induced  me  to  an- 
swer your  lordships'  first  question  in  the  negative,  lead  me  to 
answer  the  second  question  also  in  the  negative.  The  question 
is  in  these  words  : — [The  Lord  Chief  Justice  here  read  the  se- 
cond question.'] 

"  In  answer  to  this  question,  my  lords,  I  must  also  take  leave 
to  add,  as  another  ground  of  objection  to  the  proof  proposed  in 
the  question,  that  it  does  not  thereby  appear  what  was  the  na- 
ture of  the  papers  alluded  to,  or  what  the  motive  of  the  party 
endeavouring  to  obtain  them :  for  any  thing  that  can  be  inferred 
from  that  question,  the  papers  might  be  unconnected  with  the 
subject  of  the  prosecution,  and  relate  wholly  to  some  other  and 
different  matter." 

Then  Abbott,  C.  J.  delivered  the  unanimous  opinion  of  the 
learned  Judges  to  the  first  part  of  the  third  question  in  the 
affirmative,  also  with  a  qualification;  and  gave  their  reasons  as 
follow  : — 

"  My  lords,  we  understand  the  first  part  of  this  third  question 
to  relate  to  a  prosecution  for  some  crime,  the  proof  whereof  is  to 
consist  wholly  or  in  part  of  evidence  of  a  conspiracy  entered 
into  by  the  party  then  indicted  and  under  trial ;  so  that  the 
conspiracy  is  to  be  given  in  evidence  against  him ;  and  the  lat- 
ter part  of  the  question  regards  the  case  of  a  person  indicted 
for  some  crime,  and  seeking  to  defend  himself  against  that  in- 
dictment by  proving  a  conspiracy  to  suborn  witnesses  against 


1 


APPENDIX,  Xl 

him ;  and  the  points  of  inquiry,  in  both  parts,  regard  only  the 
order  and  course  of  adducing  the  proof  before  the  Court ;  and 
so  understanding  the  question,  we  have  no  hesitation  as  to  an- 
swering the  first  part  of  it  in  the  affirmative.  We  are  of  crpinion, 
that  on  a  prosecution  for  a  crime  to  be  proved  by  conspiracy, 
general  evidence  of  an  existing  conspiracy  may,  in  the  first  in- 
stance, be  received  as  a  preliminary  step  to  that  more  particu- 
lar evidence,  by  which  it  is  to  be  shewn  that  the  individual  de- 
fendants were  guilty  participators  in  such  conspiracy.  This  is 
often  necessary  to  render  the  particular  evidence  intelligible, 
and  to  shew  the  true  meaning  and  character  of  the  acts  of  the 
individual  defendants,  and  on  that  account,  we  presume,  is  per- 
mitted. But,  it  is  to  be  observed,  that,  in  such  cases,  the  ge- 
neral nature  of  the  whole  evidence  intended  to  be  adduced  is 
previously  opened  to  the  Court,  whereby  the  Judge  is  able  to 
form  an  opinion  as  to  the  probability  of  affecting  the  individual 
defendants  by  particular  proof  applicable  to  them,  and  connect- 
ing them  with  the  general  evidence  of  tlie  alleged  conspiracy ; 
and  if,  upon  such  opening,  it  should  appear  manifest  that  no 
particular  proof  sufficient  to  affect  the  defendant  is  intended  to 
be  adduced,  it  would  become  the  duty  of  the  Judge  to  stop  the 
case  in  limine,  and  not  to  allow  the  general  evidence  to  be  re- 
ceived, which,  even  if  attended  with  no  other  bad  effect,  such 
as  exerting  an  unreasonable  prejudice,  would  certainly  be  a  use- 
less waste  of  time. 

"  As  to  the  second  part  of  the  question,  my  lords,  \ve  under- 
stand it  to  be  here  assumed,  that  the  supposed  conspiracy  to 
suborn  witnesses  against  the  accused  is  a  legitimate  ground  of 
defence,  and  that  your  lordships  do  not  ask  the  opinion  of  the 
Judges  on  that  point ;  and,  therefore,  upon  that  point  we  do  not 
presume  to  offer  any  thing  to  your  lordships;  anil,  considering 
this  latter  part  of  the  proposed  question,  like  the  first  part,  to 
regard  only  the  order  and  course  of  adducing  the  proof,  we  shall 
give  the  same  answer  in  the  affirmative,  with  this  qualification 
only,  namely,  that  the  proposed  evidence  should,  in  some  way, 
be  previously  opened  to  the  Court,  as  in  the  case  of  a  prosecu- 
tion to  be  proved  by  conspiracy,  in  order  to  enable  the  Judge 
to  form  an  opinion  as  to  the  probability  of  bringing  the  evidence 
home,  so  as  to  affect  some  person  whose  acts  are  material  and 
relevant  to  the  issue  in  the  indictment  then  under  trial." 


Xii  APPENDIX. 


No.  III. 

OBSERVATIONS,    CONTAINED    IN    THE    FORMER    EDITIONS,    ON    THE 

QUESTION WHETHER  WITNESSES   CAN  BE  DISGRACED  BY  THEIR 

OWN  EXAMINATIONS  ? 


.3:^9 


Those  who  contend  for  such  a  mode  of  examination,  assert 
that  if  it  is  not  to  prevail  to  the  fullest  extent,  the  whole  benefit 
of  viva  voce  evidence,  and  trial  by  jury,  will  be  lost  and  at  an 
end  :  That  the  office  of  a  jury  is  not  to  find  facts  merely  be- 
cause they  are  sworn  to  by  witnesses,  but  to  weigh  and  estimate 
the  credit  which  is  due  to  persons  standing  in  that  situation  ; 
That,  to  enable  them  to  do  this,  it  is  necessary  for  them  to 
know  something  about  the  life  and  character  of  the  person 
testifying;  and  that  such  was  the  ancient  policy  of  the  law,  ap- 
pears from  the  circumstance  of  the  jury  being  always  summoned 
de  vicineto,  from  the  neighbourhood  of  the  place  where  the  cause 
3  Bias.  Com.  of  action  arose :  "  Living  in  the  neighboHrhood,  they  were  pro- 
perly the  very  country  or  pais  to  which  both  parties  had  ap- 
pealed, and  were  supposed  to  know  beforehand  the  character  of 
the  parties  and  their  witnesses,  and  therefore  the  better  knew 
what  credit  to  give  to  the  facts  alleged  in  evidence."*  Whereas 
now,  the  jury  being  summoned  from  the  county  at  large,  the 
witnesses  are,  in  general,  entirely  unknown  to  them,  and  the 
party  against  whom  they  appear,  having  no  notice  of  the  wit- 
nesses who  are  to  be  called  against  him,  has  no  other  mode  of 
enabling  the  jury  to  determine  what  credit  is  due  to  them,  than 
by  an  inquiry  of  themselves,  who  they  are,  and  how  they  have 
passed  their  lives.  That  no  injury  either  to  the  witness  or  the 
cause  of  justice  can  result  from  this  inquiry,  for  no  honest  man 
will  refuse  to  give  an  account  of  himself;  and  if  insinuations, 
which  are  unfounded,  are  thrown  out,  he  has  the  opportunity  of 
denying  the  truth  of  them  ;  which  denial,  if  made  in  the  une- 
quivocal and  decided  manner  which  conscious  innocence  will 
always  dictate,  will,  instead  of  prejudicing  the  character  of  the 


•  See  also  Fortescue  de  Land,  c.  26,  where  the  same  reason  is  given  for  ihe  jury 

coiD'mg  dt:  vicineto ;  and  Co.  Lit.l5S,h, 


APPENDIX.  ^\\\ 

witness,  throw  all  the  odium,  intended  to  be  cast  on  him  by  the 
charge,  or  the  person  who  had  the  wickedness  to  suggest  it. 
Whereas,  if  it  be  true,  that  the  vvitness  is  of  a  cast  and  charac- 
ter which  does  not  entitle  him  to  full  credit,  he  ought  not  to 
pass  as  a  man  of  unblemished  reputation. 

On  the  other  hand  it  is  said,  that  a  person  who  comes  into  a 
Court  of  justice,  to  testify  in  a  particular  cause,  is  not  supposed 
to  be  prepared  to  answer  for  all  the  transactions  of  his  life ;  that 
one  slight  deviation  from  the  path  of  virtue  ought  not  so  to  blast 
the  character  of  a  man,  as  to  be  for  ever  the  subject  of  reproach 
to  him ;  and  that  when  he  comes  into  Court,  not  as  a  volunteer, 
but  under  the  compulsory  process  of  the  law,  he  ought  not  to  be 
placed  in  such  a  situation  as  to  be  obliged  either  to  confess,  and 
revive  the  memory  of  a  disgrace  which  had  long  since  been  for- 
gotten, and  which  his  subsequent  good  conduct  had  wiped 
away  ;  or  else  to  be  tempted  to  commit  perjury  for  the  protec- 
tion of  that  character  which  his  amended  course  of  life  had  pro- 
cured him.  That  if  he  is  wholly  incompetent,  by  reason  of  the 
commission  of  a  crime  of  which  he  has  been  legally  convicted, 
the  record  of  his  conviction,  which  contains  the  particulars  of 
his  infamy,  is  the  only  evidence  to  repel  his  testimony.  That  if 
he  is  not  worthy  of  credit,  on  account  of  his  general  bad  charac- 
ter, the  lav/  has,  in  that  case  also,  pointed  out  the  means  of 
counteracting  the  elFect  of  his  evidence  by  the  testimony  of 
others  as  to  that  character.  That  even  in  this  ease  particular 
circumstances  are  not  to  be  inquired  into,  much  less  ought  he 
himself  to  be  questioned  as  to  those  facts  which  others_  cannot 
be  permitted  to  prove.  That  though  in  some  instances  the  party 
may  be  surprised  by  finding  a  witness  in  the  box,  of  whom  he 
has  no  previous  knowledge,  yet  this  so  rarely  happens,  that  it 
is  infinitely  less  mischievous  to  submit  to  the  inconvenience 
which  a  person  so  circumstanced  might  experience,  than  to  es- 
tablish, in  every  case,  a  course  of  practice  so  highly  injurious  / 
to  the  feelings  of  every  man  appearing  as  a  witness..  But  that 
even  here,  the  party  is  not  without  remedy  :  if  he  makes  it  ap- 
pear to  the  satisfaction  of  the  Court,  that  he  was  surprised  by 
the  appearance  of  a  stranger  ;  that  such  stranger  is  a  man  of 
infamous  character,  or  that  the  evidence  which  he  has  given  is 
untrue,  and  can  be  contradicted  by  other  witnesses;  the  Court, 
exercising  a  sound  and  equitable  discretion,  may  send  the  cause 
back  to  be  reconsidered  by  another  jury. 

Unfortunately,  no  direct  authorities  arc  to  be   found  either 
one  way  or  other.     Loose  dicta,  or  equivocal  expressions,  are 


Xiv  APPENDIX. 

all  that  occur  to  direct  our  judgment;  and  though  there  ar« 
some  cases  which  seem  to  bear  a  strong  analogy,  yet  it  must  be 
recollected  that  the  argument  thence  arising  is  counteracted  by 
what  is  admitted  to  have  been  the  established  and  invariable 
practice  for  a  considerable  space  of  time. 
Co.  Lit.  158,  Lord  Coke,  speaking  of  challenges  to  jurors,  says,  "  If  the  cause 
of  challenge  touch  the  dishonour  or  discredit  of  a  juror,  he  shall 
not  be  examined  upon  his  oath  ;  but,  in  other  cases,  he  shall  be 
examined  upon  his  oath  to  inform  the  triers."  As  far  as  the 
case  of  a  juryman  is  analogous  to  that  of  a  witness,  this  is  cer- 
tainly an  authority  in  favour  of  those  who  maintain  that  such  an 
examination  is  illegal ;  but  it  must  be  observed,  that  the  same 
necessity  does  not  exist  in  the  case  of  a  juror  as  does  in  that  of 
a  witness.  The  pannel  is  made  out  and  known  to  the  parties 
long  before  the  trial ;  they  have  an  opportunity  of  inquiring  as 
to  the  characters  and  course  of  life  of  the  persons  named  in  it; 
and,  if  they  find  any  thing  which  destroys  the  competency  of  a 
juror,  they  may  be  prepared  to  prove  it.  His  character,  in  re- 
spect of  matters  which  would  not  exclude  him  from  sitting  in 
judgment  on  a  cause,  and  which  forms  so  essential  an  inquiry 
when  estimating  the  credit  due  to  a  witness,  can  never  be  the 
subject  of  inquiry  ;  nor  is  it  at  all  necessary  for  the  purposes 
of  justice  that  any  such  inquiry  should  take  place  ;  for  if  either 
party  dislikes  him,  he  may  object  to  him  without  assigning  any 
reason  whatever ;  and  may  extend  this  peremptory  challenge 
to  such  a  number  of  jurors  as  is  sufficient  to  remove  the  fears 
of  the  most  cautious  and  timid.  The  case  of  a  juror,  therefore, 
differs  materially  from  that  of  a  witness,  and  as  far  as  the  credit 
due  to  the  latter  forms  any  part  of  the  consideration  of  the 
jury,  bears  do  analogy  whatever. 
4  St.  Tr.  748!  ^^^  ^^®  ^^^^  whiclj  has  been  principally  relied  on,  on  some 
Saik,  153.  late  occasions,  is  that  of  Peter  Cooke,  who  being  indicted  for 
treason,  in  order  to  found  a  challenge  for  cause,  asked  a  jury- 
man, whether  he  had  not  said  he  believed  him  guilty;  when  the 
whole  Court  determined,  th^t  the  juryman  was  not  obliged  to 
answer  the  question. 

Lord  C.  J.  Treby  said,  "  You  may  ask  upon  the  voire  dire, 
whether  he  have  an  interest  in  the  cause;  nor  shall  we  deny 
you  liberty  to  ask,  whether  he  be  fitly  qualified,  according  to 
law,  by  having  a  freehold  of  sufficient  value :  but  that  you  may 
ask  a  juror,  or  witness,  every  question  that  will  not  make  him 
criminous,  that's  too  large.  Men  have  been  asked,  whether  they 
have  been  convicted,  and  pardoned  for  felony,  or  whether  they 


APPENDIX.  ^y 

have  been  whipped  for  petty  larceny,  but  tliey  have*  not  been 
obliged  to  answer ;  for,  though  their  answer  in  the  affirmative 
will  not  make  them  criminal,  nor  subject  to  punishment,  yet 
they  are  matters  of  infamy  ;  and  if  it  be  an  infamous  thing,  that's 
enough  to  preserve  a  man  from  being  bound  to  answer.  A  par- 
doned man  is  not  guilty  ;  his  crime  is  purged  ;  but  merely  for 
the  reproach  of  it,  it  shall  not  be  put  upon  him  to  answer  a  ques- 
tion whereon  he  will  be  forced  to  forswear  or  disgrace  him. 
So  persons  have  been  excused  from  answering,  whether  they 
have  been  committed  to  Bridewell  as  pilferers  or  vagrants,  or  to 
Newgate  for  clipping  or  coining,  8cc.  Yet  to  be  suspected  is 
only  a  misfortune  and  shame,  no  crime.  The  like  has  been  ob- 
served in  other  cases  of  odious  and  infamous  matters,  which 
are  not  crimes  indictable." 

Mr.  J.  Powell  clearly  considered  this  as  tending  to  charge 
the  juror  with  a  crime,  for  after  saying  it  might  have  been  asked 
in  a  civil  cause,  because  he  might  have  been  a  referee,  he  added, 
"  But,  if  you  make  it  criminal,  it  cannot  be  asked,  because  a 
man  is  not  bound  to  accuse  himself."  Mr.  Baron  Powis  adopted 
the  same  line  of  argument  as  the  Chief  Justice,  saying,  that 
though  it  did  not  make  him  infamous  in  the  eye  of  the  law, 
"yet  that  it  was  a  shameful  thing  for  a  man  to  give  his  judg- 
ment before  he  had  heard  the  evidence,  and  therefore  that  the 
prisoner  ought  not  to  ask  him,  to  make  him  accuse  himself,  if  it 
be  opprobrious  matter  upon  him."  But  it  is  observable,  that 
he  said  nothing  in  respect  of  such  questions  being  put  to  a  loit- 
ness. 

As  a  decision,  therefore,  this  case  extends  no  further  than  what 
was  before  said  by  Lord  Coke.  The  application  of  the  doc- 
trine to  witnesses  depends  entirely  upon  the  dictum  of  Lord  Ch. 
Just.  Treby,  who  mentions  no  particular  instance  in  which  it 
had  been  so  applied.  It  is,  nevertheless,  the  opinion  of  a  great 
Judge,  and  as  such  not  to  be  lightly  or  irreverently  treated. 

The  last  authority  which  I  find  in  the  books,  is  what  is  said  If^^  Lovat's 

Oast     U  St 

by  Lord  Hardwicke,  presiding  as  Lord  High  Steward,  on  the  Tr.  670. 
trial  of  Lord  Lovat,  where  Lord  Talbot  proposing  to  ask  a  ques- 
tion of  one  of  the  witnesses  before  he  was  sworn.  Lord  Hard- 
wicke said:  "The  ordinary  method  of  proceeding  in  these 
cases  is,  that  when  a  witness  is  produced,  he  is  to  be  sworn  in 
chief,  unless  there  be  some  objection  to  his  competency;  and 
then  he  is  to  be  sworn  upon  a  voire  dire.  After  he  is  sworn 
in  chief,  the  party  who  produces  him  asks  him  such  questions  as 
he  thinks  proper.     After  which  the  other  party  is  at  liberty  to 

4P 


XVi  APPENDIX. 

cross-examine  him,  either  to  the  matter  of  fact  concerning  which 
he  has  been  examined,  o?-  any  other  7natter  tvhatsoever,  to  im- 
peach his  credit  oriveaken  his  testimony  ;  provided  the  questions 
that  are  asked  are  such  as  the  law  allows." 

It  is  observable,  that  Lord  Hardwicke  makes  no  distinction 
as  to  the  nature  of  the  incompetency  which  may  be  inquired 
into  on  the  voire  dire;  but  the  qualification  which  is  added  by 
him  as  to  questions  on  the  examination  in  chief,  has  thrown 
a  degree  of  obscurity  on  what  would  otherwise  have  been  very 
clear.  It  should  seem,  however,  that  his  lordship  could  only 
have  in  contemplation,  when  he  made  that  qualification,  an  exa- 
mination as  to  crimes  for  which  the  witness  would  be  punish- 
able ;  for  he  expressly  extends  the  power  of  cross-examination 
to  matters  concerning  which  he  had  been  examined,  or  any  other 
matter  tvhatsoever  ivhich  should  tend  to  impeach  his  credit.  He 
does  not  confine  it  to  the  explanation  of  what  he  had  before 
sworn,  or  to  the  introduction  of  new  matter  as  evidence  in  the 
cause  ;  but  he  permits  the  party  to  inquire  of  the  witness  him- 
self into  matters  foreign  to  the  cause,  merely  for  the  purpose  of 
impeaching  his  credit,  or,  in  other  words,  of  disgracing  him.  On 
the  other  hand,  what  is  said  by  Lord  Ch.  Just.  Treby  is  deci- 
sive against  such  a  mode  of  examination  ;  and  when  we  see  that 
great  authority  on  the  one  hand,  and  the  uniform  practice  of  the 
bar  for  a  series  of  years  countenanced,  as  it  seems  to  be,  by  the 
opinion  of  Lord  Hardwicke  on  the  other,  we  cannot  but  con- 
sider this  as  a  doubtful  point ;  and  one  which  it  is  highly  impor 
tant  should  be  judicially  and  solemnly  decided. 


CASES  SINCE  DETERMINED  AND  REFERRED  TO  IN  PAGE  204. 


Harris  v.  Tippet,  2  Camph.  637. — Gloucester  Lent  Assizes, 
51  Geo.  3. 

This  was  an  action  for  not  accounting  for  a  promissory  note 
given  to  the  defendant  to  be  discounted  on  behalf  of  the  plaintiff. 

A  witness  for  the  defendant  was  asked,  in  cross-examination, 
whether  he  had  not  attempted  to  dissuade  a  witness,  examined 
for  the  plaintiff,  from  attending  the  trial,  he  swore  positively  that 
he  had  not. 


% 


APPENDIX. 

Dauncey  then  proposed  to  call  back  the  other  to  contradict 
him. 

Lawrence  J. — That  cannot  be  done.  You  hiust  take  his 
answer. 

Dauncey  contended,  that  for  the  purpose  of  discrediting  the 
witness,  it  was  competent  to  shew  that  he  had  sworn  falsely  in 
this  instance,  and  actually  had  attempted  to  dissuade  the  other 
from  attending  the  trial. 

Lawrence,  J. — Had  this  been  a  matter  in  issue,  I  would  have 
allowed  you  to  call  witnesses  to  contradict  what  the  last  witness 
has  sworn  ;  but  it  is  entirely  collateral,  and  you  must  take  his 
answer.  I  will  permit  questions  to  be  put  to  a  witness  as  to  any 
improper  conduct  he  may  have  been  guilty  of,  for  the  purpose  of 
trying  his  credit;  but  when  these  questions  are  irrelevant  to 
the  issue  on  the  record,  you  cannot  call  other  witnesses  to  con- 
tradict the  answers  he  gives.  No  witness  can  be  prepared  to 
support  his  chas-acter  as  to  particular  facts,  and  such  collateral 
inquiries  would  lead  to  endless  confusion. 

Dauncey  and  Ludlow,  for  the  plaintilF, 

Jervis  and  Abbott,  for  the  defendant. 


Weeks  v.  Sparke,  1  Maule  ^  Selwyn,  679.  (p.  493.) 

Trespass  for  breaking  and  entering  plaintiff's  close, -parcel  of 
a  common;  defendant  justified  for  a  prescriptive  right  of  com- 
mon at  all  times,  &c.  Replication  prescribed  to  use  the  place 
for  tillage  ;  and  to  support  such  prescriptive  qualification  of  the 
general  right  claimed  by  the  defendant,  the  plaintiffs  offered 
evidence  of  reputation.  The  Judge  received  the  evidence,  and 
afterwards  the  Court  held  it  was  properly  admitted,  because 
although  the  right  claimed  by  the  plaintiff  was  by  prescription, 
yet  it  was  an  abridgment  of  the  general  i  ight  of  common  over 
the  waste,  and  affected  a  large  number  of  occupiers  within  the 
district. 


XVII 


Yewin's  Case,  2  Campb.  638. 

Lawrence,  J.  laid  down  the  same  rule  several  times  during 
the  circuit;  and  it  seems  particularly  illustrated  by  the  follow- 
ing case,  which  occurred  at  Monmouth  ;— One  Fewin,  was  in- 


Xviii  APPENDIX. 

dieted  tor  stealing  wheat.  The  principal  witness  against  hiru 
was  a  boy  of  the  name  of  Thomas,  his  apprentice.  Lawrence,  J. 
allowed  the  prisoner's  counsel  to  ask  Thomas,  in  cross-exami- 
nation,  whether  he  had  not  been  charged  with  robbing  his  mas- 
ter, and  whether  he  had  not  afterwards  said  he  would  be  re- 
venged on  him,  and  would  fix  him  in  Monm,outh  gaol  r — He  de- 
nied both. 

The  prisoner's  counsel  then  proposed  to  prove,  that  he  had 
been  charged  with  robbing  his  master,  and  had  spoken  the  words 
imputed  to  him.  Lawrence,  J.  ruled  that  his  answer  must  be 
.,  taken  as  to  the  former,  but  that  as  the  words  were  material  to 
the  guilt  or  innocence  of  the  prisoner,  evidence  might  be  ad- 
duced that  they  were  spoken  by  the  witness. 


No.  IV. 

MS.  CASES   CITED,  THE    NOTES   WHEREOF    ARE    NOT   CONTAINED    ly 
THE  BODY  OF  THE  WORK. 


The  King  v.  The  Inhabitants  of  Hammersmith.  K.  B.  Sittings 
at  Tfestminster  after  Hil.  Term,  1776.  (p.  26.) 

On  a  presentment  for  not  repairing  a  road  in  the  hamlet  of 
Hammersmith, 

Joseph  Fitch,  a  witness  for  defendants,  proved  what  an  old 
man  now  dead  had  told  him  twenty  years  ago,  about  the  bounda- 
ries of  the  parish  of  Jicton  and  hamlet  of  Hammersmith ;  but 
the  old  man  who  told  him  was  at  that  time  an  inhabitant  of  the 
hamlet :  on  which  Mr.  Bearcroft  objected  that  this  was  not  evi- 
dence, because  the  person  who  said  it  was  interested  at  the 
time.     But 

Lord  Mansfield  said  it  was  good  evidence,  for  at  that  time 
there  was  no  question  or  dispute  about  the  matter,  and  it  could 
not  be  supposed  a  man  held  a  conversation  for  the  chance  of  a 
dispute  in  order  to  make  it  evidence  twenty  years  afterwards. 


APPENDIX.  3,^ix 

Washington  and  others,  Executors,  v.  Brymer,  K.  B.   Sittings 
at  Guildhall  after  Hil.  Term,  42  Geo.  3.  (p.  51.) 

Debt  on  bond,  dated  27th  Sept.  1766,  for  800/.  conditioned 
for  payment  of  400/.  and  interest  on  the  27th  Sept.  1767. 

Pleas  non  est  factum,  solvit  ad  diem,  solvit  post  diem, — a  Re- 
lease,— and  a  discharge  under  an  Insolvent  Act  of  28th  May, 
1778. 

To  rebut  the  presumption  of  payment,  the  plaintiffs  produced 
an  aflidavit  made  by  the  defendant  on  the  1st  July,  1800,  be- 
fore a  Master  in  Chancery,  to  whom  it  had  been  referred  to  take 
an  account  of  the  testator's  personal  estate  ;  wherein  he  stated 
that  the  testator,  Michael  Foster,  having  three  daughters,  to  each 
of  whom  he  said  he  intended  to  give  a  portion  of  1,000/. ;  the 
defendant  in  the  year  1764,  married  one  of  them,  and  received 
a  portion  of  500/. ;  with  an  assurance  that  he  intended  to  give 
him  500/.  more  at  his  death.  That  he  (the  defendant)  being  in 
want  of  money  in  1767,  applied  to  the  testator  to  assist  him, 
who  then  lent  him  400/.  on  the  bond  in  question,  and  being  about 
six  years  afterwards  again  in  distressed  circumstances,  he  again 
applied  to  the  testator  to  assist  him  ;  who  refused,  saying  that 
he  had  already  had  his  share  of  his  estate,  that  he  might  do  as 
he  pleased  with  what  he  had,  as  he  should  never  call  on  him  for 
it.  The  affidavit  then  added,  that  the  deponent  conceived  that 
the  testator  had  cancelled  the  bond,  and  that  he  hadnever  been 
applied  to  for  payment  by  him. 

The  testator  died  in  1791. 

Erskine,  for  the  defendant,  contended,  that  though  this  affi- 
davit rebutted  the  plea  of  payment,  it  afforded  strong  evidence 
to  presume  a  release  by  the  testator.  When  a  man  promises  to 
forgive  his  debtor,  it  must  be  presumed  that  he  intends  to  do  so 
by  those  means  which  the  law  points  out,  and  as  that  could  only 
be  by  a  release  under  seal,  it  must  be  presumed  that  such  re- 
lease had  been  duly  executed.  The  relationship  of  the  parties 
to  each  other  gives  the  strongest  reason  to  presume  that  it  was 
done  ;  for  the  defendant  relying  on  the  promise  of  his  father-in- 
law,  could  not  be  supposed  to  call  on  him  to  know  whether  he 
had  executed  a  release  or  cancelled  the  bond  as  a  stranger 
would ;  and  the  circumstance  of  the  testator  never  having 
called  upon  the  defendant  for  the  money  for  twenty-three  years 
together,  was  the  strongest  evidence  in  the  world  to  shew  that 
he  did  not  consider  this  as  a  .subsisting  instrument. 

Grose,  J.  This  bond  was  given  by  a  son-in-law  to  his  father- 


XX  APPENDIX, 

in-law,  it  appears  that  he  afterwards  was  told  that  payment 
would  never  be  called  for.  He  therefore  had  every  reason  to 
suppose  that  it  was  either  cancelled  or  otherwise  legally  dis- 
charged. It  is  clear  by  the  production  that  it  was  not  can- 
celled ;  then  a  release  might  have  been  executed. 

Verdict  for  defendant 

Attorney  General  and ,  for  plaintiff. 

Er skint  and  Lawes,  for  defendant. 


Doe  dem.  Powell  v.  Harcourt,  K.  B.  Sittings  at  TVestminster 
after  Easter  Term.  39  Geo.  3.    (p.  128.) 

Ejectment  for  a  piece  of  land  situate  in  the  parishes  of  St. 
Leonard,  Shoreditch,  and  St.  Luke,  Old  street,  in  the  county  of 
Middlesex. 

The  lessor  of  the  plaintiff  claimed  this  land  under  the  will  of 
her  late  husband,  Mr.  Moj^at,  who  derived  title  from  a  family  of 
the  name  of  Radcliffe.  Their  title  commenced  by  deeds  of 
lease  and  release,  dated  1st  and  2d  Feb.  1696,  between  James 
Richardson  and  John  Radcliffe,  whereby  a  certain  piece  of  land 
called  the  Irish  Acre  was  conveyed  to  Radcliffe  in  fee,  which 
land  was  described  as  abutting  on  a  piece  of  land  called  the 
Harpe.  The  plaintiff  also  proved  receipt  of  rent  by  Moffat,  her 
late  husband,  an  old  plan  delivered  by  the  defendant  to  the  go- 
vernors of  St.  Ptartholemew^s  Hospital,  in  which  the  locus  in  quo 
was  described  as  part  of  Moffat's  estate ;  and  that,  unless  this 
land  was  the  plaintiff's,  she  had  no  land  abutting  on  the  Harpe  ; 
and  that  the  prebendary  of  the  moor  of  St.  PauPs,  as  lessee  of 
whom  the  defendant  claimed,  had  without  it  eighteen  acres  two 
roods.  She  then  produced  in  evidence  a  survey  taken  in  1649, 
by  virtue  of  an  ordinance  of  the  Parliament,  which  was  entitled 
as  follows : — 

*'  A  surveye  of  certaine  parcells  of  meadowe  and  pasture 
grounde  in  the  countye  of  Middlesex,  late  belonginge  to  the  pre- 
bendary of  the  moore  with  the  cathedrall  church  of  St.  PaiiPs, 
London,  made  and  taken  by  us  whose  names  are  hereunto  sub- 
scribed, in  the  month  of  October,  1649,  by  virtue  of  a  commission 
to  us  granted,  grounded  upon  an  act  of  the  Commons  of  Eng- 
land assembled  in  Parliament,  for  the  abolishinge  of  deans,  and 
deans  and  chapters,  canons,  prebends,  and  other  offices  and 
tythe*  of  and  belonging  to  any  cathedral,  or  collegiate  church. 


APPENDIX.  Xxi 

©r  chapel,  in  England  and  fVales,*  under  the  hands  and  seals 
of  five  or  more  of  the  trustees  in  the  said  act  named  and  ap- 
poynted. 

"All  those  eighteen  acres  of  lands,''  &c.  The  lands  were 
then  particularly  specified,  and  all  tdgether  amounted  to  the 
exact  number  of  eighteen  acres. 

The  defendants  attempted  to  account  for  the  possession  of 
the  Eaddiffe  and  Moffat  families,  by  shewing  that  for  many 
years  they  held  the  church  lands  in  lease ;  and  contended,  that 
they  being  also  possessed  of  other  estates  of  their  own  adjoin- 
ing and  intermixed,  encroachments  had  been  made  by  them 
upon  the  prebendal  estate ;  and  that,  in  point  of  fact,  this  was 
not  part  of  their  freehold  estate,  but  part  of  the  land  of  the  pre- 
bendary of  the  moor. 

Lord  Kenyon. — The  defen4ant  cannot  contradict  the  parlia- 
mentary survey,  it  has  always  been  considered  as  conclusive. 
By  the  deeds  of  1696,  this  property  is  described  to  be  in  the 
same  posture  as  that  in  which  it  now  remains,  viz.  as  abutting 
upon  the  Harpe  ;  and  it  appears  that  if  this  is  not  the  land  in 
question,  the  lessor  of  the  plaintiff  will  have  no  land  so  abutting. 
The  parliamentary  survey,  taken  by  those  who  were  in  posses- 
sion of  the  church  property,  describes  it  with  the  utmost  parti- 
cularity ;  and  the  quantity  of  which  the  prebendary  of  the  moor 
is  now  possessed  agrees  with  this  description.  This  is  a  very 
strong  argument  in  favour  of  the  lessor  of  the  plaintiff;  for  the 
persons  who  then  held  the  reins  of  government,  and  seized  the 
church  lands,  wished  to  make  the  most  of  them,  and  would  not 
have  described  them  as  of  less  extent  than  they  really  were. 

Verdict  for  plaintiff- 

Gibbs,  Wood,  and  Peake,  for  plaintiff. 

Erskine,  Garrow,  and  Best,  for  defendant. 


Cooke  and  another  v.  Lloyd.     Salop  Sum.  ,Qss.  1803,  cor.  Le 
Blanc,  J.  (p.  133,  note.) 

This  was  an  issue  directed  out  of  the  Court  of  Chancery  to 
try  whether  Joseph  Phillips  was  the  eldest  son  of  John  Phillips 
and  Mary  his  wife,  lawfully  begotten.  The  issue  was  directed 
in  consequence  of  a  bill  filed  by  the  plaintiffs,  who  claimed  under 


•  Sre  thia  act  in  6W<oJeZ'» collection,  2  pan,  page  IG. 


XXii  APPENDIX- 

Joseph  Phillips  against  the  defendant,  whose  father  had  pur- 
chased from  Philip  Phillips,  an  elder  son,  but  who,  it  was  con- 
tended by  the  plaintiffs,  was  born  before  the  marriage  of  his 
parents. 

The  single  point  in  the  cause  therefore  was,  when  John  Phil- 
lips and  Mary  Phillips  were  first  married. 

On  the  part  of  the  plaintiff  they  called  a  great  number  of  wit- 
nesses who  spoke  to  declarations  of  the  parents  that  they  never 
were  married  till  1759;  that  the  father  when  in  anger  called 
his  wife  a  whore,  and  his  children  born  before  that  marriage 
bastards ;  and  that  on  his  death -bed  he  pointed  to  Joseph  Phil- 
lips as  his  heir,  and  the  person  to  whom  his  estate  ''which  was 
settled)  would  descend  after  his  death ;  they  proved  from  the 
register  of  the  parish  where  they  lived  the  entry  of  their  mar- 
riage on  the  16th  ^pril,  1759,  previous  to  which  Philip  and  se- 
veral other  children  had  been  born.  They  also  called  the  motjjer 
herself,  who  positively  swore,  that  though  she  went  to  town  for 
the  purpose  of  being  married  in  the  Fleet,  yet  that  in  fact  she 
never  was  married  there  nor  any  where  else  before  1759. 

They  also  offered  evidence  of  the  declarations  of  Philip  Phil- 
lips, who  was  dead,  (made  after  he  had  conveyed  to  the  defend- 
ant's father,)  that  he  was  a  bastard ;  that  all  the  world  knew  he 
was  such ;  and  that  that  was  the  reason  of  his  selling  the  land 
so  cheap  to  Lloyd,  who  might  fight  it  out  with  his  brother 
Joseph. 

The  defendant's  counsel  objected  to  this  evidence,  contend- 
ing that  nothing  said  by  Phillip,  after  he  had  conveyed  to  Lloyd, 
could  be  received  in  evidence  to  prejudice  his  rights. 

Le  Blanc,  J.  said,  that  a  declaration  made  under  such  cir- 
cumstances vvas  entitled  to  very  little  credit,  and  would  avail 
nothing  of  itself,  but  that  he  thought  it  admissible  as  the  repre- 
sentation of  one  of  the  family  of  the  degree  of  relationship  he 
bore  to  it. 

This  evidence  was  therefore  received. 

The  defendant  proved  that  the  mother,  whose  name  was 
Mary  Guess,  living  in  the  service  of  John  Phillips's  mother, 
banns  were  published  in  the  year  1747;  that  those  banns  being 
forbidden  by  his  mother,  he  and  Mary  Guess  went  to  London 
together  for  the  purpose  (as  they  said)  of  being  married  in  the 
Fleet ;  that  on  their  return,  they  gave  out  that  they  had  been  so 
married ;  that  they  afterwards  lived  on  the  estate,  and  were 
visited  as  man  and  wife  by  the  neighbours,  and  at  last  by  his 
mother  herself.    That  on  June  7,  1772,  John  Phillips,  by  an  in- 


APPENDIX. 

strument  under  his  hand,  reciting  that  he  had  suffered  a  reco- 
very of  the  estate,  and  being  only  tenant  for  life,  iiad  thereby 
committed  a  forfeiture,  attorned  tenant  of  the  premises  to  Philip 
as  his  eldest  son.  That  afterwards  another  recovery  was  suf- 
fered, to  which  John,  as  tenant  for  life,  Mary  as  his  wife,  and 
Philip  as  his  eldest  son,  and  the  remainder-man  in  tail,  were 
parties.  That  on  a  motion  in  the  Court  of  Common  Pleas  re- 
specting this  recovery,  John  Phillips  and  Mary,  who  to-day  had 
sworn  that  she  never  was  married,  had  made  an  affidavit  wherein 
they  swore  that  they  had  been  married  in  the  Fleet  by  one  Bare, 
in  the  year  1747  ;  and  that  the  marriage  in  1759,  was  only  from 
greater  caution  to  secure  the  wife  after  his  death.  To  corrobo- 
rate all  this  they  ottered  the  ¥\eet  books,  wherein  this  marriage 
was  entered  as  having  taken  place  on  28th  May,  1747,  and  on 
Le  Blanc,  J.  saying  thev  were  no  evidence  whatever,  they 
called  a  witness  who  said  that  there  being  a  question  in  the 
year  1761,  as  to  this  marriage,  he  examined  these  books  then  in 
the  possession  of  a  man  who  said  he  was  clerk  to  Mr.  Dare,  and 
that  the  entry  then  stood  in  the  books  in  the  same  state  as  it 
was  now. 

Le  Blanc,  J. — This  evidence  carries  the  case  no  further,  the 
witness  had  no  knowledge  of  the  fact,  but  such  as  he  derived 
from  the  books,  which  were  no  more  evidence  then  than  they 
are  now;  the  entry  is  nothing  more  than  a  private  memorandum 
made  by  somebody  who  had  no  authority  to  make  it,  and  who 
might  put  down  any  thing  he  pleased,  jvhether  true  or  false. 

The  jury  found  for  the  defendant. 

0^illiams,  Serj.  Clifford  a.x\A  Abbott,  for  plaintiffs. 

D&uncey,  Wigley, -dnd  Winne,  for  defendant. 


Leeds  v.  Cooke  and  Wife.  K  B.  Sittings  at  Guildhall,  after  Hil, 
Term,43  Geo.  3.    (p.  145.) 

Assumpsit  on  breach  of  promise  of  marriage  by  the  wife  while 
sole.  The  defence  set  up  was  the  improper  conduct  of  the 
plaintiff;  and,  amongst  other  evidence,  a  Miss  Turpin  was 
called  to  prove  that  the  plaintiff  had,  within  three  or  four  days 
after  the  elopement  of  Mrs,  Cooke  from  her  father's  house,  and 
before  it  was  known  whether  slie  had  married  or  not,  written  a 
letter  to  the  witness  containing  an  offer  of  marriage. 

The  witness  had  been  served  with  a  subpana  duces  tecum  to 
4  Q 


XXlll 


Xxiv  APPENDIX. 

bring  the  letter,  atul  on  being  called  said,  that  after  that  wnt 
had  been  served  on  her,  she  had  delivered  the  letter  to  the  plain- 
tift'.  No  notice  had  been  given  to  him  to  produce  it,  and  on  an 
objection  that  for  want  of  such  notice,  the  witness  could  not 
speak  to  its  contents. 

Lord  Ellenborough  said,  that  being  delivered  to  the  plain- 
tiff after  the  siibpcena  duces  tecum  had  been  served,  and  in  fraud 
of  that  writ,  in  odium  spoliatoris,  parol  evidence  might  be  given. 
Otherwise  a  witness  being  the  friend  of  the  party  against  whom 
he  was  subpoenaed,  might  always  avoid  the  effect  of  the  sub- 
poena by  delivering  over  the  paper  to  the  party. 

The  witness  could  not  be  induced  to  recollect  the  terms  of 
the  letter,  but  another  person  by  whom  it  was  sent  proved  its 
contents  ;  and  this  witness  also  proved  a  verbal  offer  of  mar- 
riage to  her  a  few  days  afterwards. 

The  plaintiff  had  Is.  damages. 

Erskine,  Gibbs,  and  ■■■-■  — ,  for  plaintiff. 

Garroiv  and  Lawes,  for  defendants. 


Keeling  v.  Ball.  K.  B.  Sitllngs  at  Guildhall  after  Easter  Term, 
36  Geo.  3.  (p.  146.) 

Debt  on  bond  for  200/.  made  by  John  Ball,  the  brother  oi 
the  defendant,  and  to  wljom  he  was  heir  at  law. 

The  declaration  stated,  that  the  bond  was  lost  by  accident. 
Pleas  7ion  est  factum  and  solvit  ad  diem.  ^ 

The  plaintiff  called  a  witness  of  the  name  of  Russell;  who 
proved  that  the  plaintiff  had  delivered  him  a  bond,  purporting 
to  be  the  bond  of  /.  Ball  and  Edward  Ball,  and  that  he  after- 
wards applied  to  the  deceased  (J.  Ball,)  to  pay  the  money  due 
on  the  bond,  when  he  acknowledged  the  debt  and  promised  pay- 
ment. He  said  that  the  bond  was  printed  in  the  commonform,* 
and  that  there  were  subscribing  witnesses  names,  but  that  he 
did  not  know  the  names  of  those  witnesses,  nor  by  whom  the 
bond  was  prepared.  That  he  afterwards  delivered  the  bond 
to  Carter,  the  attorney,  for  the  purpose  of  commencing  an  action 
against  the  deceased.  Carter  was  next  caller),  and  proved  that 
tlie  bond  was  lost,  while  in  his  office. 

Gibbs,  for  the  defendant,  objected  that  the  plaintiff  should 

•  Which  includes  the  word  hcivs. 


APPENDIX. 

have  called  one  of  the  subscribing  witnesses  to  prove  the  exe- 
cution of  the  bond,  or  else  have  shewn  that  such  witness  was 
dead.  It  had  for  a  long  time  been  doubted,  whether  such  a 
mode  of  pleading,  as  the  present,  could  be  supported  :*  and 
Courts  should  not  carry  the  indulgence  too  far.  The  plaintiff, 
in  this  case,  might  be  in  a  better  situation  by  reason  of  the  ne- 
gligence of  his  agent,  than  he  would  have  been  in  had  due  dili- 
gence been  used  ;  for  had  the  subscribing  witness  been  called, 
the  defendant  might  crfts-examine  him  as  to  the  nature  of  the 
transaction.  The  attorney,  Carter,  he  contended,  had  been 
guilty  of  some  negligence  ;  for  he  might  have  kept  a  copy  of  the 
bond  ;  and  had  that  precaution  been  taken,  the  subscribing  wit- 
ness might  have  been  called. 

Lord  Kenyon  said,  that  had  it  appeared  who  the  subscribing 
witnesses  were,  the  plaintiff  must  certainly  have  called  them ; 
but  that  it  was  the  business  of  Courts  of  Justice,  to  apply  the 
general  principles  of  the  law  to  new  cases  as  they  arise.  This 
was  a  new  case,  for  it  did  not  appear  that  the  plaintiff  could, 
by  any  possibility,  know  who  the  subscribing  witnesses  were. 
If  it  was  usual  for  men  to  keep  copies  of  such  instruments  by 
them,  the  plaintiff's  attorney.  Carter,  would  certainly  have  been 
guilty  of  negligence,  and  the  plaintiff  could  not  avail  himself  of 
that  negligence ;  but  that  was  not  the  ordinary  mode  in  which 
men  conducted  themselves.  Suppose  a  fire  had  happened,  and 
this  bond  had  been  destroyed  by  it,  surely  it  would  be  adding 
calamity  to  calamity,  to  call  on  the  party  for  more  perfect  evi- 
dence;  and  how  could  this  case  be  distinguished  from  that  .^ 
The  general  rule  of  law  is,  that  the  best  evidence  must  be  pro- 
duced, which  the  nature  of  the  case  will  admit  of;  and  no  better 
evidence  could  have  been  procured  in  the  present  case,  than  that 
which  the  plaintiff  has  given. 

Verdict  for  plaintiff. 

Garrow  and  Abbott,  for  plaintiff. 


XXV 


Cary  v,  Pitt,  Esq.  K.  13.  Sittings  at  Westminster  after  Easter 
Term,  37  Geo.  3.  (p.  154.  156.) 

Assumpsit  on   a  bill   of  exchange  (drawn  by  one    Crofton, 
against  the  defendant  as  acceptor.    The  defendant  insisted  that 

J^ 

'  ViUe  Jieedv.  Brookman,  3  T.Iiep.  151, 


Xxvi  APPENDIX. 

the  acceptance  was  a  forgery  ;  and  amongst  other  evidence,  the 
plaintiff"  called  a  witness  of  the  name  of  Coulson,  who  was  an  in- 
spector of  franks  at  the  Post  Office,  to  prove  that  he  had  fre- 
quently seen  franks  pass  the  office  in  defendant's  name  (he 
being  a  member  of  Parliament,)  and  that,  from  the  character  in 
which  those  franks  were  usually  written,  he  believed  this  ac- 
ceptance to  be  the  defendant's  hand-writing.  He  had  never 
seen  the  defendant  write,  nor  received  any  letters  from  him. 

Lord  Kenyon  said  this  was  not  adlfciissible  evidence.  The 
furthest  extent  to  which  the  rule  had  been  carried,  was  to  admit 
a  person  who  had  been  in  the  habit  of  holding  an  epistolary 
correspondence  with  the  party,  to  prove  the  hand-writing,  from 
the  knowledge  he  acquired  in  the  course  of  that  correspondence  ; 
a  case  reported  by  Fiizgibbon,*  was  the  first  in  which  such  evi- 
dence was  admitted.  That  evidence  was  admitted  on  sound 
principles  ;  for  if,  when  letters  are  sent,  directed  to  a  particular 
person  on  particular  business,  an  answer  is  received  in  due 
course,  it  is  a  fair  presumption,  that  the  answer  was  written  by 
the  person,  whose  hand-writing  it  purports  to  be  ;  but  the  franks 
sent  to  the  office  might  be  the  defendant's  hand-writing,  or  they 
might  be  forgeries,  as  well  as  the  present ;  for  no  communication 
was  had  on  the  subject  with  the  defendant. 

Garrow  then  asked  the  witness,  whether,  having  been  used 
to  detect  forgeries,  he  could  say  whether  this  was  a  genuine 
hand -writing,  or  otherwise. 

Lord  Kenyon  said,  he  could  not  receive  this,  and  observed 
that,  though  such  evidence  was  received  in  Revetl  v.  Bruliam,  he 
had,  in  his  charge  to  the  jury,  laid  no  stress  upon  it. 

Verdict  for  the  defendant. 

Erskine,  for  defendant. 


Ba  Costa  v.  Pym.    K.  B.  Sittmgs  at  Guildhall  after  Trinity 
Term,  37  Geo.  3.  (p.  154.  156.) 

Debt  on  bond. — Plea,  usury. 

The  proof  of  the  usury  depended  on  the  authenticity  of  an 
account  purporting  to  be  signed  by  the  plaintiff".  The  plaintiff 
contended  it  was  a  forgery,  which  was  the  only  question  in  the 
cause. 

*  Lord  Ferrers  y.  Shirley,  Pitzg.  195, 


APPENDIX. 

Several  witnesses  were  called  to  prove  the  hand-writing,  who 
said  they  believed  it  to  be  the  plaintiff's.  One  witness,  on 
being  asked  the  usual  question  as  to  his  belief,  said  it  was  like 
it ;  but  he  did  not  think  it  was  the  plaintiff's  hand-writing,  be- 
cause he  knew  the  plaintiff  to  be  a  man  too  well  acquainted 
with  the  world  to  sign  such  an  account. 

Erskine  contended,  this  answer  was  proper,  and  that  it  was 
like  tlie  case  which  arose  on  the  hand-writing  of  Mr.  Mickle, 
the  translator  of  the  Lusiad :  Mr.  Caldecot  in  that  case  was  per- 
mitted to  say,  he  thought  it  was  not  the  hand-writing,  of  Mr. 
Mickle,  because  he  was  a  very  correct  man  in  making  capital 
or  small  letters,  where  each  was  required,  but  in  the  writing 
produced,  that  correctness  was  not  observed. 

Lord  Kenyon  said  that  it  was  a  very  different  case  from  the 
present.  Mr.  Caldecofs  observaticns  arose  from  the  character 
of  the  hand-writing  itself,  but  this  witness  takes  into  his  consi- 
deration facts  entirely  unconnected  with  and  extrinsic  from  the 
hand-writing.  The  jury  may  take  all  circumstances  into  their 
consideration,  but  the  witness  should  form  his  opinion  from  the 
character  of  hand-writing  only. 

Several  notes  signed,  &c.  by  plaintiff  were  produced  to  the 
jury,  but  Lord  Kenyon  said,  the  best  rule  was  that  laid  down 
by  Mr.' J.  Yeates  ;*  for  if  the  jury  were  to  look  at  the  papers, 
their  judgment  would  depend  on  their  knowledge  of  writing, 
which  some  might  know  better  than  others.  It  was  best  to  rely 
on  the  evidence  of  those  well  acquainted  with  the  character  of 
defendant's  hand-writing.  The  jury,  nevertheless,  were  per- 
mitted to  compare  the  different  signatures. 

Verdict  for  plaintiff. 

Mingay,  Gibbs,  and  Cooper,  for  defendant. 

JFrs/cmeand  Wood,  for  plaintiff. 


Raven  et  al.  v.  Dunning  and  Chilton.  K.  B.  Sittings  at  Guild- 
hall after  Trinity  Term,  39  Geo.  3,  (p.  226.) 

In  this  action  of  assumpsit  both  the  defendants  pleaded  the 
general  issue,  and  Chilton  also  pleaded  his  discharge  under  a 
commission   of  bankruptcy,  on  which  issue  was  joined.     The 

•  In  Brookliurd  v.  Woodley,  ante,  15  J. 


XXVll 


XXViii  APPENDIX. 

plaintiff  proved  a  joint  contract,  and  then  the  defendant,  Chilton, 
put  in  the  commission  against  him  and  his  certificate,  which 
Law,  for  the  defendants,  contended,  entitled  Chilton  to  a  verdict 
immediately ;  and  that  when  that  verdict  was  entered,  he  might 
be  examined  as  a  witness  for  the  other  defendant,  in  the  same 
manner  as  was  daily  done  in  the  case  of  trespasses. 

Erskine,  for  the  plaintiffs,  objected  to  his  testimony.  While 
defendant  on  the  record,  he  cannot  be  a  wimess ;  and  he  cannot 
be  delivered  from  the  record  until  the  plaintiff's  counsel  has 
replied,  and  the  jury  have  deliberated.  For  aught  that  appears 
to  the  contrary,  the  plaintiff  may  prove  that  the  certificate  was 
obtained  by  fraud,  or  that  he  had  lost  money  by  gambling,  or 
other  misconduct  which  would  avoid  it.  This  differs  from  the 
case  of  trespasses,  for  here  the  plaintiff  must  prove  a  joint  con- 
tract ;  and  even  in  trespasses,  the  jury  are  never  directed  to 
acquit  a  defendant,  unless  the  plaintiff  has  failed  in  making  out 
any  cause  against  him. 

Lord  Ken  YON  said,  he  wished  to  admit  the  testimony,  for  the 
sake  of  the  plaintiffs,  (who  had  clearly  proved  their  case,)  lest, 
in  case  of  a  mistak-e  on  his  part,  the  cause  should  come  down 
again  ;  but  that  if  the  plaintiff's  counsel  insisted  on  their  objec- 
tion, he  must  reject  his  evidence,  being  most  clearly  of  opinion 
in  his  own  mind,  that  he  could  not  be  a  witness.  In  trespass, 
if  the  plaintiff  proves  any  case,  the  defendant  has  ajways  been 
called  upon  to  answer  it  by  other  evidence. 

Erskine  persisted  in  his  objection,  and  the  witness  was  re- 
jected. 

Verdict  for  the  plaintiff — Damages  137/. 


John  V.  Fothergill  and  others.  Monmouth  Sum.  ^.'Sss.  1806. 
(p.  239.) 

Trespass  for  breaking  and  entering  the  plaintiff's  slate  quarry, 
to  which  the  defendant  pleaded  liberiim  tenementum,  in  Sir 
Ch.  Morgan,  of  the  waste  lands  in  Bidwelty,  and  that  the  locus 
in  quo  was  part  of  those  waste  lands,  on  which  issue  was  joined. 

Several  persons  were  called  as  witnesses  for  the  defendant, 
who  being  tenants  of  the  lordship  of  Machin,  in  which  Bidwelty 
was,  were  entitled  to  rights  of  common  on  the  waste ;  and  on 
their  testimony  being  objected  to,  the  defendant  produced  re- 
leases from  them  of  their  rights  of  common  on  the  locus  in  quo. 


APPENDIX.  XXix 

It  was  then  objected,  that  notwithstanding  this  release,  the 
witness  wa3  still  interested  in  the  event  of  the  cause;  for  as 
other  persons  had  rights  of  connnon,  if  any  part  of  the  waste 
were  taken  away,  their  cattle  would  consume  more  of  the  re 
niainder  than  they  otherwise  would  do,  and  there  would  conse- 
quently be  less  pasturage,  &c.  for  the  witnesses  on  the  other 
parts  of  the  waste  ;  and 

Le  Blanc,  J.  tliinking  this  a  good  objection,  the  witnesses 
severally  executed  fresh  releases  of  all  rights  of  common  upon 
any  part  of  the  manor  or  lordship,  and  were  then  examined 
without  further  objection. 

Dauncey,  Bevan,  and  Abbott,  for  plaintiff. 

Williams,  Serjt.  Milks,  Hughes  and  Feake,  for  defendant. 


Monroe  v.  Twisleton.  C.  P.  Sittings  at  Guildhall,  after  Mich. 
Term,  43  Geo.  3.  (p.  248.) 

Assumpsit  for  the  board  and  lodging  of  an  infant  child  of  the 
defendant. 

To  prove  the  contract,  the  plaintift"  called  Mrs.  Sandon,  who 
at  the  time  of  making  it  was  the  wife  of  the  defendant,  but  had 
since  been  divorced  from  him  by  Act  of  Parliament,  and  was 
married  again. 

Cockle,  S.  objected  to  her  competence. 

Best,  S.  and  Peake,  contended  that  she  was  an  admissible 
witness.  It  is  true  a  wife  cannot,  while  she  remains  so,  be  a 
witness  either  for  or  against  her  husband — not  for  him,  becaus6 
she  has  an  interest  to  support  his  cause  ;  nor  against  him,  be- 
cause it  is  the  policy  of  marriage  to  create  an  union  of  interest 
and  affection.  When  two  persons  are  placed  in  the  situation  of 
man  and  wife,  the  law  precludes  every  inquiry  froni  either, 
which  might  break  in  upon  the  comfort  and  happiness  of  the 
married  state,  and  therefore  it  will  not  suffer  one  to  give  evi- 
dence which  may  affect  the  other,  because  such  evidence  might, 
as  Lord  Hale  expresses  it,  create  implacable  quarrels  and  dis- 
sentions  between  them.  This  lady,  therefore,  could  clearly  not 
have  been  a  witness  during  the  marriage,  but  the  reason  why 
she  would  then  have  been  incompetent  no  longer  exists:  The 
bond  of  marriage  is  broken  and  at  an  end ;  the  parties  are  in 
the  same  situation  as  if  it  had  never  existed,  and  the  policy  of 
the  law  no  longer  requires  that  terms  of  amity  and  friendship 
should  subsist  between  them  anymore  than  between  utter  stran- 


XXX  APPENDIX. 

gers.  In  determining  on  the  competence  of  witnesses,  the  Court 
is  not  to  look  to  their  situation  at  the  time  the  fact  happened  to 
which  they  testify,  but  at  the  time  they  come  to  give  evidence. 
If  now  competent,  her  situation  at  that  time  can  make  no  differ- 
ence, and  such  was  the  opinion  of  the  Court  of  King's  Bench  in 
Wyndham\.  Chetwynd*  where  witnesses  Interested  in  a  will  at 
the  time  of  subscription,  but  whose  interest  was  removed  at  the 
time  of  giving  testimony,  were  held  competent.  It  is  true  that 
there  were  doubts  of  the  propriety  of  the  decision  in  that  case, 
but  an  Act  of  Parliament  afterwards  passed  to  the  same  effect. 
It  is  no  objection  to  say  a  witness  was  interested  or  infamous 
at  the  time  of  the  transaction,  if  his  interest  or  infamy  has  been 
since  removed. 

Lord  Alvanley. — To  prove  any  fact  arising  after  the  divorce, 
this  lady  is  a  competent  witness,  but  not  to  prove  a  contract  or 
any  thing  else  which  happened  during  coverture.  She  was  at 
that  time  bound  to  secrecy ;  what  she  did  might  be  in  conse- 
quence of  the  trust  and  confidence  reposed  in  her  by  her  hus- 
band, and  miserable,  indeed,  would  the  condition  of  a  husband 
be,  if  when  a  woman  is  divorced  from  him,  perhaps  for  her  own 
misconduct,  all  the  occurrences  of  h's  life,  entrusted  to  her  while 
the  most  perfect  and  unbounded  confidence  existed  between 
them,  should  be  divulged  in  a  Court  of  Justice.  If  she  might  be 
a  witness  in  a  civil  proceeding,  she  might  equally  be  so  in  a  cri- 
minal prosecution  ;  and  it  never  shall  be  endured,  that  the  con- 
fidence which  the  law  has  created  while  the  parties  remained  in 
the  most  intimate  of  all  relations,  shall  be  broken  whenever  by 
the  misconduct  of  one  party,  for  misconduct  alone  can  have 
that  effect,  the  relation  has  been  dissolved. 

The  plaintiff  called  other  witnesses,  and  obtained  a  verdict. 


Doe  dem.  Howell  and  others  v.  Lloyd,  cor.  Lawrence,  J.  Here- 
ford Sum.  Ass.  1806.  (p.  164.  523.) 

Ejectment  for  lands  in  Carmarthen. 

Both  parties  claimed  under  one  Jno.  Thomas,  who  had  de- 
vised the  estate  to  several  persons  successively  for  life  and  in 
tail,  with  a  reversion  to  his  own  right  heirs ;  the  lessor  of  the 
plaintiff  contending  that  the  reversion  passed  to  her  under  the 

•  Ante,  234. 


APPENDIX.  XXXi 

will  of  David  Thomas,  the  eldest  son  and  heir  at  law  of  the  said 
J.  T. — the  defendant  on  the  other  hand  contending  that  D.  T. 
never  made  any  valid  will. 

The  will  being  above  thirty  years  old,  the  lessor  of  the  plain- 
tiff" called  a  clerk  from  the  Ecclesiastical  Court  to  produce  it, 
and  offered  no  evidence  of  the  death  or  hand-writing  of  the  sub- 
scribing witnesses. 

When  produced,  the  signature  of  the  testator  appeared  to  be 
a  mere  scrawl,  quite  illegible,  evidently  the  attempt  of  some 
person  to  write,  who,  from  weakness,  or  some  other  cause,  was 
quite  unable  to  do  so  ;  and  one  of  the  subscribing  witnesses  ap- 
peared to  be  a  marksman.  The  lessor  of  the  plaintiff"  had 
never  been  in  possession  of  the  land  ;  the  particular  estates 
therein  had  continued  till  within  the  last  twelve  years,  and  dur- 
ing that  time,  till  January  last,  the  lessor  of  the  plaintiff"  was 
under  coverture. 

It  was  objected,  on  behalf  of  the  defendant,  that  Under  these 
circumstances  the  will  could  not  be  read  without  some  evi- 
dence of  its  execution ;  for,  in  the  first  place,  there  was  no 
possession  under  it  to  raise  a  presumption  in  its  favour ;  and 
2dly,  the  appearance  of  the  instrument  itself  was  such  as  to 
create  a  suspicion  that  it  was  not  properly  executed.  The 
writing  which  purported  to  be  the  signature  of  the  testator  was 
not  such  as  any  literate  man  would  make,  in  full  possession  of 
his  faculties ;  and  if  it  was  to  be  considered  as  nothing  more 
than  a  mark,  one  of  the  subscribing  witnesses  ought  to  have  cer- 
tified it  to  be  so,  by  writing  the  mark  of  D.  T.  opposite  to  it. 

Lawrence,  J.  said,  that  coming  from  the  Ecclesiastical  Court, 
which  was  the  proper  custody,  and  that  Court  having  granted 
probate  of  it,  the  instrument  proved  itself;  and  as  to  the  ob- 
jection on  account  of  the  testator's  hand-writing  not  being  legi- 
ble, the  witnesses  had  in  their  attestation  certified  it  to  be  signed 
by  him  ;  whether  such  signajture  was  to  be  considered  as  a  name 
or  a  mere  mark,  it  was  equally  the  signature  of  the  testator,  and 
attested  as  such  by  the  witnesses. 

The  defendant  then  put  in  the  original  purchase  deed  of 
John  Thomas  in  the  year  1730,  whereby  the  premises  were  con- 
veyed to  Jno.  Thomas  and  on^Edio.  Davies,  Cwho  it  was  proved 
had  survived  Thomas,)  and  their  heirs,  to  the  use  of  them  and 
their  heirs,  in  trust  nevertheless  as  to  the  estate  of  Davies,  for 
Thomas,  his  heirs,  &c. ;  and  on  this  evidence  it  was  contended, 
that  the  plaintiff"  must  be  nonsuited  for  the  want  of  a  count  on 
the  demise  of  the  heir-at-law  of  Davies,  to  whom  the  legal  es- 

4R 


XXXll  APPENDIX. 

tate  survived.     The  plaintiff  proved  that   Thomas's  wife  dieii 
in  his  life-time. 

Lawrence,  J.  told  the  jury  that  the  conveyance  could  only 
be  taken  in  this  form,  for  the  purpose  of  preventing  Jno. 
Thomases  wife  from  claiming  dower  in  the  lands,  that  such  pur- 
pose had  long  since  been  completely  fulfilled,  and  therefore 
they  might  presume  that  IJavies,  or  his  heir,  had  conveyed  his 
legal  interest  to  Thomas,  after  the  death  of  his  wife,  or  to  some 
of  his  descendants  since.  Under  this  direction  the  jury  pre 
sumed  a  conveyance,  and  found  a  verdiA  for  the  plaintiff. 

fVilliams,  S.  and  Dauncey,  for  the  plaintiff. 

Jlbbott,  Peake,  and  Zon/,  for  the  defendant. 

In  the  following  term  a  motion  was  made  to  enter  a  nonsuit^ 
on  the  ground  that  there  was  no  evidence  to  presume  a  surren- 
der, but  the  Court  refused  a  rule  to  shew  cause. 


Knohell  v.  Fuller  and  another,  cor.  Eyre,  C.  J.  Sittings  after 
Trin.  Term,  1797.  (p.  478.) 

In  an  aclion 

for  a  libel   the         .  ,,  .  -i-i     ,  ■  i-    i      -i    •        ,i  a^        • 

defendant  AcTioN  on  the  case  for  a  libel,  published  in  the  Morning 

may  prove  in  p^gf  ^f  ^j^g  jQ^|j  January,  1797,  charging  the  plaintiff  with  being 

mitigation  ni  i-ir  .°.  r 

damages,  any  concerned  With  Launcelot   Knowles  in   procuring  money  from 
ground  of  sus.^j^g  relations  and  friends  of  persons  convicted  of  capital  offences, 

picion  short  of  r  r  ' 

facts,  which     under  pretence  of  being  able  to  procure  pardons   through  the 
pieade'd'have  interference   of  the  Duke  of  Portland,   in  whose  service  the 

amounted  to     plaintiff  waS.* 

j^istTc^tlon,        '^^^  defendant  pleaded  the  general  issue  ;  and  in  mitigation 
on  the  general  of  damages  offered  evidence  to  prove  that  though  the  plaintiff 
was  not  prosecuted  for  the  offence,  as  Knowles  had  been,  there 
v.'as  nevertheless  strong  grounds  of  suspicion  against  him. 

The  Chief  Justice  at  first  doubtitig  the  admissibility  of  this 
evidence*. 


•  The  following  ir,  a  copy  of  the  libel.  "  The  proverb  that  one  man  may  steal  a 
/jorsc  while  another  dare  not  \oo\i.  over  the  hedge,  was  nevermore  fully  verified 
than  in  the  case  of  the  persons  concerned  in  procuring  pardons.  Launcelot  Kno-wles, 
evi<lentl_v  the  a^C7it  and  dupe  oi' Knobell.  lias  been  tried  and  deservedly  convicted  ; 
but  the  latter,  the  honest  nm\  faithful  servant  of  his  Grace  of  Portland,  though  the 
principal  actor  in  (he  abomrnable  practices,  hernia  foreigner,  and  having  good  friends, 
is  suiTered  to  escape  punishment,  an<l  permitted  to  enjoy  the  full  exercise  of  his  li- 
berty. This  IS  justice  from  an  offender  who  ought  at  least  to  have  accompanied  bis 
wicked  acquaintance  to  .liotanii  nnxf." 


APPENDIX. 

Adair,  S.  for  the  defendants,  admitted,  that  the  defendants 
could  not  give  in  evidence  on  the  general  issue  facts  which,  if 
pleaded,  would  have  amounted  to  a  justification ;  but  contended 
that  they  might  prove  facts  which  shewed  there  was  cause  of 
suspicion,  and  therefore  proved  that  the  defendants  were  not 
induced  to  publish  this  paper  hy  reason  of  malice  against  the 
plaintiff,  but  for  the  purpose  of  conveying  information  to  the 
public,  this  being  a  concern  of  a  public  nature  ;  and  Runnington, 
S.  who  was  on  the  same  side,  read  a  note  of  a  case  of  Curry  v. 
Walter,  C.  B.  Sittings  after  Hil.  Term,  36  Geo.  3,  where  Eyre, 
C.  J.  admitted  the  distinction,  and  received  such  evidence. 

Eyre,  C.J.  said,  he  believed  that  in  that  case  he  admitted  the 
evidence,  in  order  to  shew  that  the  defendant  had  not  in  fact  pub- 
lished a  libel,  he  having  only  published  the  proceedings  of  a 
Court  of  justice,  which  the  Court  afterwards  determined  to  be 
no  libel  in  point  of  law ;  but  he  would  not  deny,  but  he  might 
also  have  received  it  in  mitigation  of  damages  ;  for  though  he 
had  never  known  the  evidence  given  in  an  action  for  a  libel,  yet 
he  had  always  understood  that  in  an  action  for  words,  the  de- 
fendant might,  in  mitigation  of  damages,  give  any  evidence  short 
of  such  as  would  be  a  complete  defence  to  the  action,  had  a 
justification  been  pleaded. 

The  defendants  then  called  Mr.  Ford,  a  magistrate,  to  prove 
that  on  the  examination  of  the  plaintiff  before  him,  he  admitted 
that  he  had  received  five  guineas  for  conveying  a  letter  to  the 
Duke  ;  and  the  Duke  himself  being  examined,  said,  that  thinking 
the  plaintiff  had  misconducted  himself  in  that  respect,  he  had 
discharged  him  fi*om  his  service. 

The  jury  nevertheless  found  a  verdict  for  the  plaintiff  (da- 
mages, 200/.)  against  the  defendant  Fuller  ;  the  other  defendant, 
not  being  proved  to  be  a  proprietor  of  the  paper,  a  verdict  was 
found  for  him. 

Shepherd,  S.  for  the  plaintiff. 


Doe  dem.  Bailiff  and  Burgesses  of  Clun  v.  Clarke  and  others. 
Salop  Sum.  Ass.  1809.  (p.  525,  note.) 

This  was  an  ejectment  against  several  persons  who  defended 
jointly. 

On  the  opening  of  the  case,  it  appeared  that  the  defendant 
being  severally  possessed  of  cottages,  which  the  lessors  of  the 


XXXUl 


XXXiV  APPENDIX. 

plaintiff  contended  were  within  the  wastes  of  the  borough,  and 
encroachments  upon  them,  had  severally  paid  rent  to  the  cor- 
poration each  for  his  own  tenement.  That  afterwards  they 
refused  to  pay  more  rent,  and  disputed  the  title  of  the  corpo- 
ration. 

It  was  hereupon  objected  by  Abbott,  for  the  defendant,  that 
the  plaintiff  could  not  proceed  against  more  than  one  defendant, 
without  proving  them  joint  trespassers,  and  therefore,  as  they 
were  now  admitted  to  be  several,  he  must  make  his  election  to 
proceed  against  one  only. 

But  Bayley,  J.  said,  that  he  thought  this  was  not  like  a  mere 
action  of  trespass,  but  that  the  plaintiff  might  recover  from  each 
defendant  in  a  joint  action,  the  tenement  in  his  several  occupa- 
tion. This  point,  however,  he  saved  for  the  opinion  of  the 
Court,  if  the  defendant  thought  proper  to  move. 

The  defendant's  counsel  then  cross-examined  the  plaintiff's 
witnesses,  to  shew  that  the  waste  on  which  the  cottages  were 
erected  was  part  of  the  lordship  of  Cluyi,  which  belonged  to  Lord 
Powis,  and  therefore  it  was  that  they  disclaimed  to  hold  longer 
under  the  lessors  of  the  plaintiff. 

Dauncey,  for  the  plaintiff,  contended,  that  the  defendants 
having  paid  rent  to  the  lessors  of  the  plaintiff,  were  estopped 
from  controverting  their  title. 

Bayley,  J. — The  defendants  having  disclaimed  to  hold  under 
the  plaintiffs,  are  not  in  the  same  situation  as  a  tenant  who  has 
always  admitted  his  landlord's  title.  The  disclaimer  was  a  no- 
tice that  they  meant  to  contest  the  title ;  and  therefore,  though 
I  shall  re  eive  the  payment  of  rent  ^s  prima  facie  evidence  of 
the  lessor  of  the  plaintiff's  title,  and  they  are  put  thereby  in  the 
same  situation  as  if  they  were  defendants  relying  on  their  pos- 
session ;  yet  it  is  merely  prima  fatie  evidence,  and  the  proof  of 
title  in  any  other  person  will  be  an  answer  to  such  prima  faci^ 
case  made  by  the  lessors  of  the  plaintiff,  and  call  on  them  to 
prove  their  title. 

The  defendants  failing  in  proving  that  Lord  Poivis  was  enti- 
tled to  the  cottages,  the  plaintiff  had  a  verdict  against  two  of 
the  tenants  who  liad  disclaimed  ;  tlie  others  who  had  not  dis- 
claimed were  acquitted  for  want  of  notice  to  quit. 


ADDENDA. 


TTie  reader  is  requested  to  refer  to  the  following  cases,  (which 
have  been  determined,  for  the  most  part,  while  the  work  has 
been  at  press,)  in  the  page  prefixed  to  several  paragraphs. 

Pages  44  and  247. — Campbell  v.  Twemloio,  1  Price,  81.  The 
Court  of  Exchequer  inclined  to  the  opinion,  that  a  woman  who 
had  passed  as  the  wife  of  a  man,  but  was  not  so,  could  not  be 
examined  as  a  witness  for  him  ;  and  the  Chief  B  iron  mentioned 
an  instance  wherein  Lord  Kenyon,  when  Chief  Justice  of  Ches- 
ter, so  ruled  in  a  capital  case. 

p.  390. — Goss  V.  Watlington,  C.  P.  Michaelmas,  2  Geo.  4. 
The  Court  held  that,  in  an  action  against  a  surety,  who  had  en- 
tered into  a  joint  bond  with  his  principal  on  his  appointment  to 
a  public  oflBce,  conditioned  for  payment  of  all  monies  received, 
and  further,  that  the  principal  should  from  time  to  time  enter 
into  certain  books  all  monies  by  him  received;  entries  in  such 
books  by  the  principal,  were  after  his  death  evidence  against 
the  surety;  but  they  gave  no  opinion  whether  such  entries  would 
have  been  evidence  without  such  a  special  clause  in  the  condi- 
tion, or  with  it  in  his  life-time.  They  held  that  receipts  given 
by  him  were  not  evidence. 

page  194. — In  Smith  v.  Doe  dem.  Earl  of  Jersey,  2  Br.  4»  B. 
473/  7  Price,  28],  S.  C.  the  mode  of  reserving  rent  in  leases, 
granted  previous  to  the  creation  of  a  power,  was  deemed  evi- 
dence as  to  what  was  the  usual  and  accustomed  rent ;  and  the 
like  evidence  was  admitted  and  much  relied  on  in  Doe  dem. 
Earl  of  Shrewsbiiry  v.  Wilson,  K.  J3.  Hilary,  2  &  3  Geo.  4, 

page  591.— -In  Winson  v.  Pratt,  2  Brod.  Sf  B.  650,  the  Court 
of  Common  Pleas  determined  that  a  will  was  not  cancelled  by 
an  unfinished  alteration  by  the  testator. 


ADDENDA. 

p.  493. — The  same  Court  held,  that  when  rights  had  been 
exercised  on  land  in  possession  of  tenant  for  twenty  years,  the 
presumption  was,  that  the  owner  had  knowledge  of  it,  and  that 
the  onus  lay  upon  him  to  prove  the  contrary.  Gray  v.  Bond, 
ibid.  667. 

p.  402. — A  lessee  took  a  mansion  house  and  farm,  with  the 
exclusive  liberty  of  sporting  over  all  the  lands  within  the  ma- 
nor, at  the  rent  of  450/ ;  the  lessor  not  having  the  possession 
of  all  the  land,  the  tenant  was  warned  off  great  part,  and  it  was 
held,  that  the  jury  might  give  damages  only  to  the  value  of  the 
farm  and  house,  without  reference  to  the  rent  reserved.  Tom- 
linson  v.  Day,  ibid.  680. 

p.  242. — Assignee  of  bankrupt  who  has  released  his  claim,  is 
a  witness  to  prove  petitioning  creditor's  debt.  Tomlinson  v 
Wilkes,  ibid.  397. 

p.  25,  26. — In  the  proof  of  a  pedigree,  the  dying  declarations 
of ./?.  as  to  the  relationship  of  the  lessor  of  the  plaintiff  to  the 
person  last  seised,  are  not  evidence.  Doe  dem.  Sutton  v.  Ridg- 
way,  4  B.  4-  A.  52,. 

p.  178. — A  testator  by  his  will  devised  to  Mathew  W.  his 
brother,  and  Simon  W.  his  brother's  son,  a  certain  estate ;  it 
appeared  that  the  testator  had  three  brothers,  each  of  whom 
had  a  son  of  the  name  of  Simon,  living  at  the  time  of  the  testa- 
tor's death.  Held,  that  the  proof  of  this  fact  did  not  raise  any 
latent  ambiguity  in  the  will,  so  as  to  let  in  parol  evidence  of 
declarations  of  the  testator  as  to  the  person  intended ;  it  being 
clear  that  the  person  intended  was  Simon,  the  son  of  Mathew. 
Doe  dem.  JFestlakex.  IFestlakt,  ibid.  57. 

p.  473. — On  an  information  for  writing,  composing,  and  pub- 
lishing a  libel  in  the  county  of  L.  it  appeared  that  the  defendant, 
on  the  22d  .August,  wrote  and  composed  the  libel  in  L.,  and 
that  he  was  seen  in  L.  on  that  and  the  following  day.  On  the 
24th  the  libel  was  delivered  in  the  county  of  M.,  (100  miles 
off)  by  .4.  to  B.,  being  enclosed  in  an  envelope  addressed  to  w3., 
containing  written  directions  to  Ji.  to  forward  the  libel  to  B., 
by  whom  it  was  subsequently  published  iu  31.  The  envelope 
was  open  ;  and  it  was  not  proved  that  there  was  on  it  any  trace 
of  a  seal  or  post-mark.  ^.  was  not  called  on  the  trial  as  a  wit- 
ness by  either  party ;  nor  was  it  proved  that  he  was  a  resident. 


ADDENDA. 

or  had  been  about  that  time  in  L.     Held,  by  three  Justices, 
(dissentiente  Bayley  J.)  that  this  was  evidence  on  which  the 
jury  might  properly  be  left  to  presume  that  the  libel  was  deli 
vered  open  to  A.  in  Z. 

Held,  also,  by  three  Justices,  (Bayley,  dubitante,)  that  a  de- 
livery at  the  post-office  in  L.  of  a  sealed  letter,  enclosing  a  libel 
is  a  publication  of  the  libel  in  Z.  Held,  also,  by  three  Justices, 
(Bayley,  J.  dubitante,)  where  a  defendant  writes  and  composes 
a  libel  in  L  with  the  intent  to  publish,  and  afterwards  publishes 
it  in  M.  that  he  may  be  indicted  for  a  misdemeanour  in  either 
county. 

And,  jicr  totam  curiam,  where  a  libel  imputes  to  others  the 
commission  of  a  triable  crime,  held,  that  evidence  of  the  truth 
of  it  is  inadmissible.  Held,  also,  where  in  summing  up,  the 
Judge  told  the  jury  that  the  intention  was  to  be  collected  from 
the  paper  itself,  unless  explained  by  the  mode  of  publication, 
or  other  circumstances  ;  and  that,  if  its  contents  were  likely  to 
excite  sedition,  &c.  defendant  must  be  presumed  to  intend  that 
which  his  act  was  likely  to  produce  ;  and  that,  if  they  found 
such  to  be  the  intent,  he  was  of  opinion  it  was  a  libel ;  and  that 
they  were  to  take  the  law  from  him,  unless  they  •\vere  satisfied 
that  he  was  wrong,  that  this  was  a  correct  mode  of  leaving  the 
question  to  the  jury  under  32  Geo.  3,  c.  60,  s.  1. 

Qu.  Whether  the  writing  and  composing  a  libel  with  intent 
to  publish,  but  not  followed  by  publication,  be  an  offence.  The 
King  r.  Sir  F.  Burdett,  4  B.  ^'  A.  95. 

p.  502. — In  trespass,  the  ^declaration  was  for  taking  goods, 
chattels,  and  effects ;  held  that  the  plaintiff  might  recover  the 
value  of  fixtures  under  these  words.  Pitt  v.  Shew,  A  B.fy  A.  206. 

p.  548. — In  assumpsit,  by  the  provisional  assignee  of  a  bank- 
rupt, defendant  pleaded  the  general  issue.  Held  that  the  fact 
of  the  bankrupt's  estate  having  been  assigned  by  the  provisional 
assignee  to  the  new  assignee,  between  the  time  of  issuing  the  lati- 
tat and  the  delivery  of  the  declaration,  is  no  ground  of  nonsuit  on 
a  plea  of  non-assumpsit.  Qu.  Whether  it  would  have  been  an 
answer  to  the  action  if  specially  pleaded.  Page  v.  Bauer,  4 
B.  Sf  A.  345. 

p.  156. — Entries  in  a  steward's  book  above  thirty  years  old, 
and  coming  from  the  proper  custody,  are  admissible  in  evidence 
without  proving  the  hand -writing  of  the  steward.     Semble,  that 


ADDENDA. 

the  rule  extends  to  all  written  documents  coming  from  the  pro- 
per custody.  Wynne,  Bart.  v.  Tyrwhitt,  4  B.  S,-  A.  376. 

p.  247. — In  trover  by  .i.  against  B.,  C.  is  a  competent  wit- 
ness to  prove  property  in  himself.  Ward  v.  Wilkinson,  4.  B.  8,' 
.4.4'iO. 

p.  570. — The  fact  of  a  tenant  for  life  not  being  seen  or  heard 
of  for  fourteen  years  by  a  person  residing  near  the  estate,  al- 
though not  a  member  of  the  family,  is  prima  facie  evidence  of 
the  death  of  the  tenant  for  life.  Doe  dem  Lloyd  v.  Beacon,  4 
B.  8f  A.  433. 

p.  422. — A  party  on  being  asked  for  payment  of  his  attorney's 
bill,  admitted  that  there  had  been  such  a  bill,  but  stated  that  it 
had  been  paid  to  the  deceased  partner  of  the  attorney,  who 
had  retained  the  amount  out  of  a  floating  balance  in  his  hands. 

Qu.  Whether,  in  order  to  take  the  case  out  of  the  Statute  of 
Limitations,  evidence  is  admissible  to  shew  that  the  bill  had 
never  in  fact  been  paid  in  this  manner. 

Semhle,  that  such  evidence  is  admissible,  if  at  all,  only  where 
the  defendant  states  the  debt  to  be  discharged  by  particular 
means,  to  which  he  refers  with  precision,  and  where  he  has  de- 
signated the  time  and  mode  so  strictly,  that  it  is  impossible  it 
could  be  discharged  in  any  other  manner  than  that  specified. 
Beale  v.  Nind,  A  B.  ^  A.  568. 

p,  529. — Upon  a  parol  demise,  rent  to  take  place  from  the 
following  Lady-day,  evidence  of  the  custom  of  the  country  is 
admissible  to  shew  that  by  "  Lady-day"  the  parties  meant  "  Old 
Lady-day."  Loe  dem.  Hall  v.  Benson,  4  B.  ^-  Ji.  588. 

p.  621'. — In  consequence  of  the  decision  of  Bowe  v.  Young, 
referred  to  in  this  page,  the  following  Statute  has  been  passed  : 

1  &  2  Geo.  4,  C.78. — An  Act  to  regulate  acceptance  of  Bills 
of  Exchange. 

Whereas  according  to  law,  as  hath  been  adjudged,  where  a 
bill  is  excepted  payable  at  a  bankers,  the  acceptance  thereof 
is  not  a  general  but  a  qualified  acceptance:  And  whereas  a 
practice  hath  very  generally  prevailed,  among  merchants  and 
traders  so  to  accept  bills,  and  the  same  have  among  such  per- 
sons been  very  generally  considered  as  bills  generally  accepted, 
or  accepted  without  qualification :  And  whereas  many  persons 
have  been  and  may  be  much  prejudiced  and  misled  by  such 


ADDENDA. 

practice  and  understanding,  and  persons  accepting  bills  may  re- 
lieve themselves  from  all  inconvenience  by  giving  such  notice  as 
hereinafter  mentioned  of  their  intention  to  make  only  a  qualified 
acceptance  thereof;  "  Be  It  therefore  enacted  by  the  king's  most 
excellent  majesty,  by  and  with  the  advice  and  consent  of  the 
lords  spiritual  and  temporal,  and  commons.,  In  this  present  Par- 
liament assembled,  and  by  the  authority  of  the  sain«,  that  from 
and  after  the  first  day  of  August  now  next  ensuing,  if  any  person 
shall  accept  a  bill  of  exchange,  payable  at  the  house  of  a  banker, 
or  other  place,  without  further  expression  in  his  acceptance, 
such  acceptance  shall  be  deemed  and  taken  to  be,  to  all  intents 
and  purposes,  a  general  acceptance  of  such  bill;  but  if  the  ac- 
ceptor shall  in  his  acceptance  express  that  he  accepts  the  bill 
payable  at  a  banker's  house,  or  other  place  only,  and  not  other- 
wise or  elsewhere,  such  acceptance  shall  be  deemed  and  taken 
to  be,  to  all  intents  and  purposes,  a  qualified  acceptance  of  such 
bill,  and  the  acceptor  shall  not  be  liable  to  pay  the  said  bill,  ex- 
cept in  default  of  payment,  when  such  payment  shall  have  been 
first  duly  demanded  at  such  banker's  house  or  other  place." 

II.  And  be  it  further  enacted,  that  from  and  after  the  said 
first  day  of  August  no  acceptance  of  any  inland  bill  of  exchange 
shall  be  sufficient  to  charge  any  person,  unless  such  acceptance 
be  in  writing  on  such  bill,  or  if  there  be  more  than  one  part  of 
such  bill  on  one  of  the  said  parts. 


4  S 


I 


i 


INDEX. 


A. 

ABATEMENT,  (Pleas  in,) 

not  necessary  when  one  of  several  part- 

ners  sues  in  contract,  298. 
aliter  in  trespass  or  tort,  ibid, 
but  the  title  of  tenants  in  common  may 
be  given  in  evidence  in  reduction  of 
damages,  ibid, 
one  of  several  partners  sued  in  contract 

must  plead,  ibid, 
so  if  action  arising  in  contract  is  declar- 
ed on  in  tort,  299. 
but  in  action  founded  on  common  law 

duty,  no  such  plea  lies,  300. 
as  against  carrier  on  custom  of  realm, 

ibid, 
nor  in  cases  of  mere  tort  or  trespass, 

ibid, 
if  plaintiff  sues  several  in  contract,  he 
roust  recover  against  all  or  none,  301. 
aliter  in  trespass  or  tort,  ibid. 
ACCESS.  Sec  Husband  and  m/e.    Legi- 
timacy, 
presumption  of,  571. 
by  what  evidence  rebutted,  572. 
ACCESSARY.     See  Accomplice. 

judgment  against  principal  not  conclu- 
sive agninst  accessary,  123. 
ACCOMPLICE, 

when  a  witness  for  prosecutor  or  plain- 
tiff, 204.  216. 

for  defendant,  225. 
ACCORD  AND  SATISFACTION, 

payment  of  less  sum  afttr  promise  bro- 
ken, no  evidence  of,  410. 
ACCOUNT  STATED, 

proved,  though  reckoning  all  on  one 
side,  393. 

by  admission  of  having  lopped 

and  cut  down  trees  sold  by 

plaintiff  for  a  certain  sum, 

394. 

by  partnership  account  carried 

to  new  firm,  ibid, 
but   not  by    money   due  from 
defendant  in  autre  droit,  ibid. 
ACQUITTAL.    See  Judgment. 
ACTION, 

when  the  writ  is  evidence  of  its  com- 
mencement, and  how  proved,  54.  82. 
evidence  of  writ  continued,  456. 
ACT  OF  PARLIAMENT, 

public,  taken  judicial  notice  of,  54, 


ACT  OF  PARLIAMENT— con^inwecf, 
private,  proved  by  examined  copy,  57. 
Irish,  in  the  same  manner,  54. 
ACT  OF  STATE, 

proved  by  gazette  or  proclamation,  124. 
ADDRESS  TO  THE  KING, 

proved  in  the  same  manner,  124. 
ADNINISTRATION,  (Letters  of,) 
proved  by  production,  99.  110. 

book  of  court,  558. 
disproved  by  showing  bona  notabiUa, 
ibid. 

or     insufficient    stamp, 

ibid, 
a  repeal,  99. 
but  not  by  showing  that 
the  administrator  was 
not  entitled  to,  ibid. 
ADMINISTRATOR,     ^ee  Executor. 
ADMIRALTY  COURT, 

its  proceedings  conclusive  in  cases  with- 
in its  jurisdiction,  99. 

proved  by  copies,  108. 
ADMISSIONS.    See  Affidavit.    Answer. 
of  third    person    to  whom    reference 

made,  20. 
of  party  in  a  cause,  34. 
of  person  on  whose  behalf  it  is  brought, 

ibid, 
of  one  inhabitant  of  a   parish  against 

others,  ibid, 
of  one  partner  against  others,  86. 
of  one  of  several  makers  ot  a  joint  and 

several  note,  423. 
of  wife  against  her  husband,  36.  387. 

herself,  36.  85. 
of  attorney  against  his  principal,  36. 
of  servant  or  agent,  40. 
of  under-sheriff  or  bailiff,  39. 
of  guardian  against  infant,  86. 
the  whole  admission  to  be  taken,  34. 
offer  of  compromise  not  considered  as 

such,  41. 
nor   confession    of  felon    obtained    by 
threat  or  promise,  43. 
Acts  amounting  to : 

acting  as  parson  of  A.  44. 

as  a  licensed  postmaster,  45. 
as  the  husband  of  B.  ibid. 
Treating  with  another  as  filling  a  sta- 
tion : 
taking  tithes  of  clergyman,  45. 
accounting  with  plaintiff  as  the 


INDEX. 


ADMlSSlOmS—continued. 

tarmer  of   post    horse    duty, 
ibid, 
accounting  -with  plaintiff  as  assig- 
nee of  bankrupt,  548. 
sufftring   a  thirii  person  to  pass 
as  owner  ot  a  ship  to  df  fraud 
the  government,  45. 
ADTVnTTANCE  OF  COPYHOLDER, 
ill  wliat  cases  necessary,  and  how  prov- 
ed, 639. 
ADULTERY,  action  for, 
proof  of  marriage,  541. 

misci'n'luci  of  wife,  13.  542. 
of  husband,  542. 
letters  from  one  to  the  otherj 
ibid. 
AFFroAVIT.    See  ^Mmission. 
evidence  against  the  pirij,  88. 

his  partner,  86. 
how  proved.  88. 
AFFIRMATIVE, 

the  j)»i  ly  mniiiiig  it  to  prove,  8. 
exception  wlu-re  (larty  ciiarged  with  not 

peifoimins;  a  duty,  'J. 
exception    where  (irt-sumption  of  affir- 
manve  woultl  imply  crime  or  negli- 
gence, 10.  571. 
in  v\  hat  cases  the  party  making  is  enti- 
til  d  to  general  riply,  8. 
AGENTS, 

atlmissinns  by,  when  evidence,  39,  40. 
'what  acts  dont'  by  them  admissible   as 
evidence    against    a    prosecutor    or 
plaintiff,  14. 
whi-n  witnesses  for  principal,  240. 
when  pi  rsonalh  liable,  319. 
AGREEMEN1    FOR  LEASE.  See  Lea^e. 
ALLA  ENORMIA, 

whai    vi('.  nee  under  it,  505. 
AMBIGUITY,  in  written  instruments, 
1.   Lat'  lit, 
Explainable  by  parol  testimony  : 

two  persons  or  estates  of  same  name, 

irg,  180. 
inistaki  it.  name  of  devisee,  180. 
land  formerly  one  tenement  divided, 
181. 
Not  explainable  so  as  to  enlarge  the 
grant : 

where  there  is  sufficient  certainty  so 
as  to  satisfy  the  intent  of  the  instru- 
ment according  to  one  meaning, 
181. 

Lord  Bacon's  m^xim  and  obser- 
vation thereon,  182. 
Decisionf  npnn  it : 

devise  of  estate  at  A.  183. 
estate  of  B.  ibid, 
estate  in  C   ibid, 
estate  in  A.whicli 
I   lately    pur- 
chased  of   B. 
183. 
Not  explainable  so  as  to  luirrow  the 
gram  : 

•where  there  is  sufficient  descrip- 


AMBIG  UlTY— continued. 

tion  at  first,  but  some  unneces- 
sary words  added,  184. 

Decisions  on  this  point  : 
grant  of  tithes  in  the  pa- 
rish of  A.  all  which 
are  in  the  occupation 
of  B.  184. 
devise  of  Trogues  Farm 
in   the    occupation   of 
B.  184. 
all  my  Britton  Ferry  es- 
tate, described  in  sub- 
sequent part  of  will  as 
situate  in  G.  ibid. 
2.  Patent: 

in  general  not  explainable,  186. 

Lord  Bacon's  maxim  on  this  point,  ibid. 
obsei"\atifins  thereon,  ibid. 

Instances    of   explanatioa   re- 
cti vid  : 

in  mercantile  instruments, 

ibid, 
consideration  of  deed  tak- 
ing efFeci  under  statute 
of  uses,  187. 
presentation,   with    blank 
left  for  name  of  patron. 
189. 
ambiguous  words    in  an- 
cient instruments,  191. 
Instances  of  explanation  refus- 
ed : 

to  add  to  contract  which, 

by     statute    of    frauds, 

must  be  in  wriiing,  188. 

to  fill  up  blank  with  name 

of  divisee,  ibid, 
to  explain   meaning  of  a 
covenant  by  subsequent 
act  of  parties,  192. 
i.  Presumptive  construction  ot  law  as  to 
intention, 

controlled  by  parol  testimony,  185. 
surplus  of  personal  estate,  ibid, 
fine    levied   without  deed  to   lead 

uses,  ibid, 
will  supposed  to  be  revoked  by  sub- 
sequent marriage,  186.  592. 
ANCIENT  DOCUMENTS, 

should   always  come  from   the  proper 

custody,  134. 
what  IS  so,  13+.  144.  155. 
ANIMAL  MISCHIEVOUS, 
Aotion  for  keeping : 

evidence  required  to  support  it,  486. 
ANSWER   IN    CHANCERY.      See  ^d« 
mission. 
Against  whom  evidence : 
party  or  privy,  85. 
pai  tner,  86. 

guardian  of  infant  putting  it  in,  ibid, 
but  not  against  tht  iiif.iiit,  85. 
nor  feme  covert,  ibid. 
To  what  extent: 

as  to  all  facts  and  with  all  limita- 
tions contained  ia  it  within  the 


INDEX. 


ANSWER  IN  CHA'NCERY —continued. 
del'endant's  personal  knowledge, 
86. 
when  second  answer  read  to  ex- 
plain first,  ibid. 
For  whom  evidence  : 

any  person  interested  in  the  ques- 
tion, 86. 
How  proved  : 

by  examined  copies  of  bill  and  an- 
swer, 87. 
no  further  evidence  of  identity  re- 

quiied  in  a  civil  suit,  88. 
in  criminal  cases  the  original   must 
he  produced,  and  the  hand  wri- 
ting of  the  party  and  master  prov- 
ed, 88. 
APPRENTICE, 

Action  for  enticing  or  harbouring  : 

evidence   required    to  support  it, 
544. 
ARREST,  281. 
AR  I ICLES  OF  WAR, 

how  |)rovcd,  Ii24. 
ASSIGNEE    OF    BANKRUPT.       See 
Bankruptcy. 
not  liable  for  rent  accrued  before  he 

took  possession,  396. 
nor  as  assignee  of  a  term  unless  he  ac- 
cepts it,  447. 
putting  up  premises  to  auction   not  an 

acceptance,  ihid. 
aliter  if  he  keeps  possession  from  land- 
lord,  448. 
ASSIGNEE  OF  TERiVI.      See  Msigiiee 
of  Bankrupt. 
evidence  in  action  against,  442. 
possession /»W;?i«  _/««e  evidence  of  as- 
signment, 446. 
but  may  be  rebutted   l)y  showing  (hat 
defendant  has  not  the   whole  estate, 
ibid. 
quisre  whether  mortgagee   can   be   so 
charged, 447. 
ASSIGNEE  OF  REVEII.SION, 
evidence  in  action  by,  444. 
need  not  prove   title  precisely  as   laid, 

446. 
payment  of  rent  by  defendant  evidence 
of  assignment,  ibid. 
ATHEISTS, 

cannot  be  witnesses,  206. 
ATTORNEY.  See  Jhlmission.  Interpreter. 
not  to  reveal  or  prove  confidential  com- 
munications, 250. 
What    communication  considered 
confidential : 
proceedings  under  commission 
of  bankrupt  to  which  he  was 
clerk,  so  held   by  Lord  Ke- 
nyon,  co7i^)rt  by  Lord  Ellen- 
borough,  554. 
facts  communicated  by  his  cli- 
ent as  instructions  in  a  cause, 
250. 
What  not : 

the  circumstancesattendingthe 


ATTORl^EY—cotitinned. 

execution    of   a    fraudulent 
deed, '251. 
instructions    received     as    aa 
agent  when  no  cause  in  con- 
templaiion,  ibid, 
seeing  his  client  sworn  to  an 

answer,  ibid, 
facts  communicated  after  cause 

ended,  '252. 
or  communicated    bt/   witness 
on  examination  b)   attorney 
when  preparing  for  a  cause, 
ibid, 
or  notice  delivered  to  hira  by 
A     attorney  on  the  other  side, 
ibid. 
Evidence  in  action  for  his  bill : 
delivery  of  bill,  400. 
what  deemed  a  ilelivery,  ibid, 
his  executors  need  not  give  such 

evidence,  ibid. 
nor  need  he  when  he  sues  another 

attoi'ney,  ibid. 
or  seeks  to  set  off  his  bill,  402. 
what  bill  within  the  statute,  401. 
retaini  r  by  defendant  and  business 
done,  402. 
AUCTION.    See  Frmids  fStat.  of.  J 

the  particulars  of  sale  not  varied  by  pa- 
rol declaration,  178. 
AWARD, 

eviileiice  in  action  on  original  conside- 
ration, 112. 

or  on  the  award,  ibid, 
or  on    account  stated, 
ibid. 
How  proved  : 

by  evidence  of  the  submission  and 

award,  ibid, 
when  general  submission  open  to 

explanation,  114. 
must  be  stami)ed,  but  appointment 
of  umpire  need  not,  120. 

B, 

BAIL, 

not  competent  as  witness  for  the  defen- 
dant till  struck  out,  246. 
but  may  be  called  by  tiie  plaintiff,  260. 
BAILIFF, 

evidence   in    action   against,  600.     Sec 

SheriJ^. 
liis  admission  not  evidence  against  the 
sheriff,  unless  as  part  ol  the  rese-esia, 
.39. 
BANK  BOOKS, 

evidence  of  transfer,  384. 
proved  by  csamine(l  co[)ies,  136,  384. 
BANKKR'S  CHECK, 

payment  ot,  no  |)roof  of  debt,  393. 
drawing  of,  no  proof  of  payment,  unless 
en<lorsi  <l,  4l'2. 
BANKRUPTCY, 

who  oiay  be  witnesses  in  cases  of.    See 
Digest  (C.)  242, 


INDEX. 


BANKRUPTCY— con/»J!<e(/. 

witness  niaj  be  biouglii  before  comrnis- 
sioners  bj  /juieas  corpus,  281. 

assignment  relates  back  to  act  of  bank- 
ruptcy, 549. 

but  bargain  and  sale  not  bejond  enrol- 
ment, 550. 

1.  Evidence  generally  required  in  action 
by  assignees  as  such,  546. 

Commission  : 

what  description  sufficient,  548. 
petioning  creditor's  debt,  ibid. 

how  pioved  it  assignees  or  execu- 
tors, ibid, 
trading,  547. 
act  of  bankruptc)",  ibid.    » 

what  declaration  of  bankrupt  evi- 
dence for  this  purpose,  ibid. 
This  proof  not  n<  cessary  : 

when  the  defendant  has  admitted 

the  plaintiff's  title,  549. 
but  having  proved  debts  under  the 
cohj mission  is  not  such  admis- 
sion, 550. 
Where  no  notice  given  : 

procet-dings  will  be  evidence  for 

a  plaintiff,  549 
but  defendant  may  disprove  the 
facts  stated,  549. 
In  what  cases  notice  necessary  : 

when  the  assignees  are  substan- 
tial parties,  ibid, 
though  not  so  named  on  record, 

550. 
but  not  "when  other  persons  are 
j)afties,  549. 

2.  Evidence  in  the  action  by  assignees  on 
contract  made  with  themselves: 

need  not  prove    bankruptcy,    &c. 
551. 

3.  Evidence  in  action  by  bankrupt  disput- 
ing commission  : 

defendant  must  prove  same  facts  as 
plaintiff  in  lormercase,  550. 

admissions  by  bankrupt  evidence 
against  him,  547. 

4.  Evidence  in  act:on  against  bankrupt: 

in  what  cases  he  is  discharged  from 

covenants  in  lease,  396. 
plea  of  certificate,  550. 

evidence  to  support  it,  551. 
evidence  to  defeat  it,  ibid, 
fraud  in  obtainiiii;  it,  ibid, 
money  given  to  cri(lit(4S,  ibid, 
concealment  of  etf'  cts,  ibid, 
bankrupt  niay  prove  it  not  wil- 
ful, ibid, 
money  given  to  children,  552. 
money  lost  at  play,  ibid, 
money  lost  by  contract  for  sale 

of  stock,  ibid, 
ceriificai-  signed  by  fictitious  cre- 
ditor, 554. 

petitimiing  creilitors   within 
the  Stat.  ibid, 
former  discliarge,  and  estate  un- 
der 15j.  in  the  pound, ibid. 


BA}iKRlJPTCY—conti?iued. 

production  of  first  com- 
mission and  proof  of  de- 
fendant's submission  suf- 
ficient, 554. 

quaere,  whether  cre- 
ditor who  has  prov- 
ed his  debt  may 
now  avail  himself  of 
this  clause,  555. 
Suqsequent  promise : 

what  proof  sufficient,  ibid. 
BARRATRY, 

evidence  in  indictment  for,  14. 
BARUISTER, 

not    permitted   to    reveal    confidential 

communications,  251. 
what  is.     See  Attorney. 
BARON  AND  FEME.  See  Husband  and 

Wife. 
BASTARD.     See  Legitimacy. 

may  be  exatnined  as  to  his  own  illegiti- 
macy, 257. 
BILL  IN  CHANCERY, 

when  evidtnce  of  facts  stated  in  it,  25. 

85. 
how  proved,  61. 
BILL  OF  EXCEPTIONS, 

when  it  lies,  3. 
BILL  OF  EXCHANGE, 

evidence  in  actions  on.    (See  Stamps.) 
1.  In  general  : 

if  instrument   on    improper    st«mp, 
plaintifi*  may  go  on  consideration, 
332. 
provided  his  accounts  and  particulars 

of  demand  exii  nd  to  it,  295,  340. 
particulars,  stating  only  the  note,  not 
sufficient  in  this  case,  295. 
Notice  of  dishonour  : 

When  dispensed  with: 

by  on'  partner  drawing  on  an- 
other, 343. 
by  drawer  saying  it  would  not 
be  paid,  ibid. 
*         by  his  having  no  effects,  ibid, 
b)     his    subsequent    promise, 
ibid. 
Proof  of  notice : 

by  protest,  110.  343. 
by  letter,  159.  343. 
notice  to  produce  in  this  case. 
160. 
W'ho  may  be  witnesses  : 
For  defendant. 

party  to  prove  payment,  240. 
or  usury,  229. 
qucere  in  case    of 
accommodatioa 
bill,  ibid, 
or  instrument  void 
for      want      of 
stamp,  256. 
or  that  it  was  not 
a       partnrrship 
transaction,  ibid 
but  not  to  prove  that  he  en- 


INDEX. 


BILL  OF  EXCHANGE— co)!<f/!7/et/. 

dorsed  it  to  plainliff  to  re- 
ceive as  his  agent,  247. 
For  plaintiff: 

acceptor  to  prove  that  drawer 

had  no  eflRcts,  228. 
joint-maker  to  prove  signature 
of  dtfendanf,  247. 
2.  Evidence  in  particular  cases  : 
payee  against  accepK^r,  341. 
authority  to  accept,  ibid, 
writttn  acceptiince  admits  drap- 
er's hand,  ibid, 
presentment,  when   accepted  at 
particular  place,   ibid.       Vide 
Stat.  1  &  2  Geo.  4,  ch.  78,  Ad- 
denda. 
need  not  prove  notice,  341. 
endorsee  against  acceptor,  341. 

hand-writing  of  endor- 
ser, &c.  ibid, 
■when  necessary  to  prove 

consideration,  342. 
usury  no  defence  in  such 

case,  ibid, 
gaming  is,  ibid, 
endorsee  against  endorser,  ibid. 

endorsement,    present- 
ment, and  notice,  ibid 
endorsee  against  drawer,  ibid, 
drawer  against  acceptor,  343. 
BILL  OF  LADING, 
BLACK  ACT, 

evidence  in  action  on,  463. 
BODLEIAN  LIBRARY,^ 
BRITISH  MUSEUM,      5 

ancient   documents  there  as  matter  of 
curiosity,  not  evidence  per  se,  134. 
BONA    NOTABILIA.     See   Administra- 
tion.    Executor.     Will. 
BOOKS, 

Private,  of  deceased  persons  : 

entries  ol  receipts  by  steward 

charging  himself,  26.  641. 

by  officers  of  township, 

26. 

officersof  parish,  as  to 

repair  oi  pew,  ibid. 

incumbent,      as      to 

tithes,  ibid, 
lay  impropriator,  27. 
entries    of    payments 

by  steward,  ibid, 
servants   in   the  ordi- 
nary course  of  bu- 
siness, 30. 
attorney's     book     of 

fees,  ibid, 
man-midwife's  book, 
ibid. 
Public, 

doomsday,  128. 
survey  of  the  ports,  ibid. 
«f  the  Navy  Office,  124. 
prison,  ibid, 
man  of  wai',  ibid. 
Bank^  13C.  384. 


BOOKS— continued. 

India  House,  136. 
corporation,  135. 
parish  registers,  131, 
the  Fleet,  132. 
quarter  sessions,  124. 
clerk  of  the  peace,  ibid. 
BOUNDARY  of  county  or  parish, 
may  be  proved  by  reputation,  26. 
and  declarations  of  deceased  parishion- 
ers belore  dispute  admissible,  26. 
but  not  as  to  particular  facts,  27. 
inhabitant  witnesses  to  prove,  237. 
unless  directly  interested,  23S. 
and  by  siat.  54  Geo.  3,  made  witnesses 
in  all  cases,  238,  pi.  6. 
BULL,  (Papal,) 

when  evidence,  and  how  proved,  135. 

C. 
CARRIAGE, 

Action  for  running  down, 

evidence  to  support  it,  487. 
for  what  act  of  servant  master  lia- 
ble, 488. 
CARRIER, 

Delivery  to, 

when  evidence  of  delivery  to  pur- 
chaser, 386, 
effect  of  paying  money  into  court 
in  action  against  him,  296. 
CASE, 

Action  On  the, 

general  observations  on,  465.     See 
Particular  Titles. 
CERTIFICATE.    ^&&  Bankrupt.   Enrol- 
ment. 
CHANCERY, 
Bill, 

when  evidence,  85. 
how  proved,  58. 
Answer.     See  Answer  in  Chancery. 
what  proof  necessary  to  show  the  pro- 
ceedings, 97,  98. 
CHARACTER, 

when  in  issue,  13. 

of  plaintiff's  wife  in  action  for  crim. 

con.  13.  542. 
of  his  daughter,  in  action  for  seduc- 
tion, 544. 
of  plaintiff,  in   action  for  slander, 
478 
Of  subscribing  witness  who  is  dead,  or 
living  witness  examined  : 
how  supported,  13. 
attacked,  197. 
Evidence  in  action  for  giving  a  false  cha- 
racter : 

must  show  the  scienter  of  the  de- 
fendant, 485. 
CHARTER, 
How  pioved, 

by  e.xemplification,  58. 
presumed  from  length  of  time,  48, 
CHARTULAKY  of  an  Abbey, 

Coming  eut  of  hands  of  persons  interest- 
ed in  their  possessions, 


INDEX. 


CHARTULARY  of  an  Ahhey—contimted. 
evidence,  134. 

aliter  it  tioin  custody  of  a  sti  anger, 
ibid. 
CHILDREN, 

■VVIii'F)  witnesses,  195. 
CHlUt)GRAl'H  OF  FINE, 

to  wh^t  extent  evidence,  61. 
CHRONICLES, 

when  evidence,  127. 
CLERGY     See  Ecclesiastical  Persons. 
Benefit  of, 

effect  on  competency   of  witness, 
200. 
CLERK  OF  THE  PEACE.    See  Jioofcs. 
CODICIL.     See  mil. 
COGNOVIT, 

Monej    paid    under,    not   recoverable 
tiack,  66. 
COMMISSION, 

public,  1-28. 
COMMON  AND  COMMONER, 

Evidence  in  action  lor  the   invasion  of 
right, 

For  the  plMintifT: 

twenty    )ears  undisputed   en- 
joyment, 489. 
reputaiion  no  evidence  of  pre- 
scriptive right,  493. 
but  it  may  be  received  to  nar- 
row the  exercise  of  it  when 
manj  persons  interested,  ib. 
What  invasion  of  right  suffi- 
cient : 

turning  on  cattle,  494. 
taking  away  dung,  ibid. 
For  the  delemlant : 

twenty  yi  ars  adverse  posses- 
sion, 491. 
"Who  may  be  witnesses : 

persons   claiming   under  simi- 
lar prescription,  239. 
Who  mity  not  : 

those  claiming  under  the  same 

custom,  ibid, 
or  those  claiming  under  a  simi- 
lar prescription,  to  show  lia- 
bility of  third  persons  to  re- 
pair the  fences,  239. 
or  corporator  ((he  corporation 
being  lord)  to  show  sufficient 
common  left,  238. 
or  other  persons  claiming  com- 
mon to  disprove  right  of  par- 
ty.    Appendix,  xx.wiii. 
When  evidence  of  reputation  ad- 
mitted : 

to  narrow  prescription  in  com- 
mon field,  when  many  pro- 
prietors, 493. 
but  not    to    prove    the    right 
against  third  persoi>,492. 
COMMONS,  (Journal  nt  House  of,) 
evidence  of  and  their  effect,  84. 
COMPARISON  OF  HANDS, 

how  far  evidence  of  hand-wrUiDg,  155. 
CO:MPOSiTION.    See  Tithe$. 


COMPROMISE, 

offer  of,  rio  proof  of  debt,  41. 
CONDHION,  PRECEDENT, 

what  is,  and  whin  necessary  to  prove 
performance,  379 
CONFESSION.    See  Admission. 
Ol  a  prisoner, 

when  evidence,  43. 
Of  a  pwrty, 

does  not  avoid  the  necessity  of  prov- 
ing a  deed,  146. 
Of  a  witness, 

evidence  against  his  testimony,  or 
to    rebut    presumptions    arising 
from  his  hand-wi  iting,  198. 
CONFIDENCE.     See  Attorney.    Barris- 
ter. 
rule  does  not  extend  to  medical  atten- 
dants, 253. 
but  it  does  to  an  interpreter  acting  be- 
tween an  aitorney  and  his  clit  nt,  250. 
CONSIDERATION  of  a  deed, 

when  it  may  be  supplied  by  parol  evi- 
dence, 188. 
CONSPIRACY, 

general  evidence  of,  14. 
of  witnesses  to  defeat  justice,  or  sup- 
port unfounded  prosecution,  15. 
CONSTABLE.     (The  statutes,  see  title 
"  Justice.") 
Action  against, 

when  a  demand  of  warrant  is  ne- 
cessary, 620. 
not  when  he  acts  without  or  beyond 

the  wan  ant,  ibid, 
what  demand  is  sufficient,  623. 
action   in  all   cases  to  be    brought 
within  six  months,  621. 
how  reckoned,  622. 
when  conviction  a  defence,  623. 
CONTINUANCE.     See  Writ. 
CONIRIBUTION.    See  Indemnitv. 
CONVICTION, 

conclusive  till  quashed,  122. 
COPIES, 

of  records,  8tc.  55. 

of  other  documents,  137. 

office  copies,  what  and  when  evidence, 

61. 
of  deeds,  62.  140. 
COPYHOLD.     See  Copyholder.     Custom. 

Court  Jiaron.     Will. 
COPYHOLDER, 
Proof  of  title  by, 
court  rolls,  133. 

heirneed  not  prove  admittance,  639. 
nor   remainder-man,  if  tenant  for 

life  admitted,  ibid, 
nor   grantee  in   remainder   during 
possession    of  grantee  for  lives, 
ibid, 
devisee  must,  ibid. 

and  cannot  devise  before,  ibid. 
Will  of, 

when  surrender  necessary,  ibid, 
'what  execution  sufficient,  640. 
whatDOt,  640,  641. 


INDEX. 


COPYHOLDER— con^zMKerf. 
Claim  b)  lord, 

ill  respect  of  forfeiture,  641. 
pro  defectu  tenentis,  641 . 
for  a  fine  on  udraission,  642. 
Evidence  of  ctistom  . 

by  court  rolls,  133.  641. 

inspeciion   thereof.     Vide  In- 
spection. 
bj  custoniHry,  133. 
by  steward's  books,  133.  641. 
by  other  ancient  docuraents,  ibid, 
by  parol  evidence,  ibid, 
when  mode  of  descent  among  sis- 
ters  will   be   evidence    of  mode 
among  other  female  heirs,  642. 
what  number  of  instances  necessa- 
ry, ibid. 
CORPORATION  BOOKS. 

when  evidence,  an  i  how  proved,  135. 
evidence  of  the  rights  of  individual  cor- 
porators, ibid, 
but  not  against  the  rights  of  third  per- 
sons, ibid. 
what  considered   as  an  original  book, 
132. 
Inspection  of,  when  granted  : 

to  members  of  corporation,  138. 
but  not  to  strangers,  ibid, 
not  to  su])port  criminal  proceedings 
against  persons  holding  them,  139. 
confined    to  the   subject  in  dispute, 
ibid. 
CORPORATORS, 

When  witness.     See  Digest,  letter  (A.) 
237. 
COVENANT.    See  Assignee,  Sic. 

action  of,  438. 
COVERTURE, 
plea  of,  436. 

proof  of,  by  defendant,  ibid, 
evidence  on  7ion  est  factum,  438. 
evidence  of  marriage,  and  existence 
of  husband,  436. 
Avoidance  by  plaintiff: 

banishment  or   transportation  of 

husband,  437. 
alien  absent,  ibid, 
husband  abroad  seven  years,  ibid, 
wife  partetl  from  husband  no  an- 
swer, ibid, 
promise  b\  tier  after  his  death, 
wh'-n  vhIicJ,  ibid 
COUNTERPART  OF  DEED, 

is  evidence    witnuut   notice  to  produce 
origimil.  145. 
COURTS.     See  Admiralty  Court.    Affida- 
vit. Answe<-     Rill.   Cliancery.    Vu'inly 
Court.       Court   Huron.      Jhliovtiaiis. 
Ecclenastical   Co'irt.     Foreign  Court. 
Jiulg-.nent.     .lecord. 
COURT    BARON, 

Evidence  O!  1.3  pmceedings: 
by  its  roll.-),  133. 

their  effect,  ibid. 
insp>'oti')n    tliereof.      See  In- 
spection. 

4  T 


COURT  MARTIAL, 

Witness  ma>  be  brought  before, 
by  habeas  corpus,  281. 
proceedings  ni;i  producible,  138. 
CRIMINAL  CONVERSATlOiV, 
Evidence  in  set  ion  for. 
For  plaintiff: 

marriage,  541. 

seduction  ol  affection,  542. 

lettt.rs  between    husband  and 

wife,  ibid, 
loss  of  fortune,  ibid. 
For  defendant : 

loose  character  of  wife,  ibid, 
ill  treatmeiit  by  husband,  ibid. 
Separation  trom  the  husband, 
543. 
CUSTODY, 

no  documents  evidence  on  account  of 
their  supjiosed  antiquity,  unless  they 
come  out  of  the  prupi-r  ciisio<l> ,   133. 
what  is  so,  ibid.  154   162.     See  Bodlei- 
an Library.    British  jyiuseum. 
CUSTOM, 

Pleading  of, 

muit  be  correctly  stated,  291. 
Proof  of, 

by  reputation,  22.  642. 
bj  the  rolls  of  a  manor,  133.  642. 
bj  customary  of  ma'ior,  I-^d. 
the  custom  of  one  manor  or  parish 
is  not  evidence  of  that  of  another, 
unless  in  the  case  of  a  general 
quality,  291. 

and  when  pleaded  as  the  cus- 
tom of  the   whole  di'Jtrict. 
ibid. 
CUSTOMARY  OF  MANOR, 

fiOw  proved,  mid  wh   u  f-viJence,  135. 
CUSTOM  HOTJS^^BOOKS.    S-k Books, 
CUSTOM  HOUSE  OFFICKR, 
actiOi'  against,  620. 

when    plaintiff  must   prov^    cora- 
m'ncemenf   of  action,  arid  bow, 
622. 
of  the  notice,  &c,  required  by  the 
statute,  621. 

when  he  is  wi'hin  its  protec- 
tion, 622. 
what  notice  is  sufficient,  621. 

D, 
DAMAGES, 

Asses.smeut  of,  under  th''  statute  : 

proof  required   o(   the   siiggestiOD, 

4.i0. 
ideniity  of  bond,  ibid. 
d;*.(i:-.ges  sustained,  ibid. 
DAUGH  1  ER, 

action  for  seducing,  544.     See  Seduc- 
.'inn. 
DEATH, 

the  party  alleging  niust  prove,  570. 
Evider.c    '>f, 

repiitiition  of  family, 22. 
old  .  ntrieSj  ib  <1. 
public  books,  125, 


INDEX. 


DEATIi — continued. 

parish  register,  159. 

wh«n  presumed  from  length 

of  time,  570. 
when  from  second  marriage  of 
wife,  571. 
DEBT, 

actioD  of,  on  specialties,  449. 

proof   of   damage    under    statute, 

450. 
on  simple  contracts,  452, 
DECEIT, 

action  for,  483. 

in  what  cases  the  scienter  must  be 
proved,  288.  382.  485. 
DECLARATION,  without  oath.     See  M. 
missio7i.     Dying  Declaration. 
mav  be  evidence  whert-  the  party  agrees 
to  rest  his  cause  upon  it,  21. 
DECKEE  OF  CHAX   ERY, 

For  and  against  whom  evidence  : 
oiily  parties  and  privies,  98. 

unless  in    questions  of  public 
right,  ibid. 
How  proved  : 

bv  examined  copy  of  bill,  &c.  ibid. 
DECREE'       OF        ECCLESIASTICAL 
COURT.     See  Ecclesiastical  Court. 
DEED.     See  ^"071  est  factum. 

1.  The  regular  evidenc-  of, 

production  of  01  iginal,  and  proof  by 
one  subscribing  witness,  140. 146. 
154. 
he  must  be  called,  though  par- 
ty has  admitted  the  deed  in 
answer  in  Chancery,  146. 
but  not  wht-re  he  has  admitted 
it  betore   commissioners  of 
bankrupt,  ibid, 
or  undertaken  to  admit  it  on 
trial,  ibid, 
no  subscribing  witness  necessary, 
147. 
if  none,  or  he  denies  having 
seen  the  deed  executed,  par- 
ty may  prove  hand-writing, 
149 
how  pi-oduction  enforced  when  in 
possession  of  third  person,  145. 
efiFect   of  stibpcena   duces 
tecum,  ibid, 
counterpart  sufficient,  140. 

2.  Secondary  evidence  of, 

when  subscribing  witness  dead, 
by  pioof  of  his  hand-wri- 
ting, 149. 
so  if  abroad,  152. 

whether  resident  there  or 
not,  153. 
so  if  insane,  152. 
or  become  interested,  153. 
or  infamous  by  crime,  ibid, 
when  the  deed  is  lost,  140. 
what  circumstances  suffi- 
c'ent  to  |)rove  loss,  ibid, 
subiicribing  witness,  if  liv- 
ing and  known,  must  be 


DEED— c<?)i<j>merf. 

called  in  this  as  well  as 
01  her  cases,  146. 
aliter,  if  not  known,  ibid, 
how  to  be   pleaded  in 
in  such  case,  438. 
when  the  deed  is  in  the  posses- 
sion of  the  adverse  paciy,  158. 
proof  of  such   possession, 

159. 
presumed  to  be  so  if  he  be 
the   proper  depositary, 
159. 
notice  to  produce,  ibid, 
effect  of  deed  pro<luc- 
ed  under  iiotic<^,  I6I 
most  be  pr'ived  by  sub- 
subscribing  witness,  if 
party  producing  is  not 
a     parly    or     person 
claiming  under,  ibid. 
aliter,  if  he  is  so, 

ibid, 
how  to  be  pleaded 
in   such  cases, 
438. 
3.  In  what  cases  execution  presumed  . 
from  length  of  time,  162. 
must  come  from  proper  custo- 
dy, 164. 

what  proof  required  of  cus- 

tody,  ibid. 

presurapi  ion  does  not  arise  in 

cases  of  erasure  or  manifest 

fraud,  ibitl. 

when  presumed  from  recital  in 

other  det"ds,  ibid 
from  being  enrolled.  165. 
when  evidence   of  title  for  (he 
pany   or    his    descendants, 
168. 
not  to  be  contradicted  by  parol 
evidence,  ibid. 

unless  in   case   of    fraud, 
178    193. 
when  explained  by  parol  evi- 
dence, 

in  cases  of  latent  ambigui- 
ty, 178,  &e.     See  .,'hn- 
biguity. 
Enrolment  of, 

in  what  cases  enrolment  evi- 
dence ot  deed,  166. 
DEMURRER  to  evidence, 

when  it  lies,  and  its  effect,  5. 
party  demurring  musi   admit  facts  and 
not  merely  eviden  e,  5. 
DEPOSITIONS  OF  WITNESSES, 

in  general  only  evidence  against  parties 
or  privies,  95,  96. 

unless  in  cases  of  public  right,  ib. 
when  against   third    persons,   vide 
post,  No.  5  nod  6 
What  previous  pro  .'f  necessary : 
death  of  witness,  89. 
his  liaviHg  become  interested,  89. 
or  blind  since  he  swore  to  writing,  ib, 


I 

I 


INDEX. 


DEPOSITIONS  OF  WITNESSES— co/i- 
tinved 

or  being  out  of  ilt<-  kingdom,  92. 
In  casfs  where  interrogatO'  ics  are  lead- 
ing, 

deposition  suppressed,  97. 
or  n»l  read,  ibid. 

exception  in  the  case  of  old  depo- 
sitii'nK,  ibid 

1.  In  the  Court  ot  Chancery,  89. 

how  proveii,  97. 

re^uiarity  of  pi'ouitedmgs,  98, 

in  case  of  loss, ibid. 

2.  In  Ecclesiastical  Court,  99- 

3.  In  a  cans,   by  rule  of  court.  91. 

proved  by  copy  delivered  by  judge's 
clerk,  62. 

4.  In  India,  by  st:it.  13  Geo.  3,  91,  92. 

5.  Before  justice  of  peace,  92. 

in  cases  of  felons,  93. 

wlien  nccessMi  y  for  prisoner  to 
be  present,  93. 
in  respect  of  bastard  children,  94. 
under  mutiny   aet,  as  to  soldier's 
setllemonl,  62.  94. 

evidence   against  third  par- 
ties, 94. 
of  a  common  pauper,  94. 

not  evidence  against  third  per- 
sons, ibid. 
must  prove  magistrate's  hand -wri- 
ting, 62. 

6.  Before  commissioners  of  bankrupt, 
96. 

evidence  against  all  persons  as  to 
act  of  bankruptcy,  &c.  96. 

7.  Before  judge  on  former  trial, 

postea  produced,  90. 
proof  of  former  evidence,  ibid. 
DEPOSITARY.    See  Custody. 
DEVltiEE, 

proof  of  title  by, 

seisin  of  testator,  578. 
devise  to  him.     See  Will. 
action  against,  on  bond  of  his  tes- 
tator, 59'J.     See  Heir. 
DILAPIDATIONS, 

action  for,  632. 
DIPLOMA, 

how  proved,  109. 
DISTRESS, 

money  paid  under,  not  recoverable  in 
action  for  money  had  and  received,  06. 
DISTURBANCE, 
action  tor, 

twenty  years  undisputed  possession 

evidence  of  right,  489. 
the  like  time  of  non  user  evidence 

to  destroy  it,  491. 
other  evidence  to  rebut  presump- 
tion, 493. 
DOOMSDAY  B(  <1>K, 

evideoce,  128. 
DY1N(t  DEGLARA  nONS, 
of  p  -rson  murdered,  30. 
of  telijB  at  the  place  ol  execution,  38. 
of  witness  to  a  deed  or  will,  198. 


E. 
ECCLESIASTICAL  COURT, 

Sentence  of — against  whom  evidence : 
on  the  right  of  represent  at  lor.  or  to 
probate,  evidence  against  all  [ler- 
sons  in  civil  suits,  99.  123. 

but  not  in  criminal  cases,  123. 
How  \) roved : 

by  letters  of  administration  or 

probate,  99.  110. 
hooks  of  ordinary,  560. 
How  defeated  : 

by  showing6o7ia  no^afiift'a,  100. 

558. 
or  wrong  stamp,  558. 
or  repeal,  100, 
or  seal  forged,  ibid, 
but  not  by  showing  that  gran- 
tee was  not  entitl-  d  to  admi- 
nistration, ibid, 
on  the  right  of  marriage,  when 
directly  in  question,  99. 
or  sentence  annulling,  122. 
in  a  case  of  jactitation,  79. 

122. 
or  for  restitution  of  conjugal 

rights,  79. 
but   not  when   it  does    not 
come  directly  in  question, 
as  in   suit  against   father 
and  mother  for  fornication, 
76. 
but  tliiid  persons  may  show 
fiHud,  123. 
ECCLESIASTICAL  PERSONS,  feee/)/- 
latiidotians.       Ejectment.       JModus. 
jyon-residence.     Tithes. 
EJECTMENT, 

Plaintiff's  evidence  in  general : 
legal  title,  508. 

actual  entry— when,  508.  510.  518. 
See  Entry. 

in  what  ruanner,  510. 
commencement  of  action,  518. 
actual  ouste  ,  when  and  how  prov- 
ed, 517.  519 
disabiliiy  to  avoid  statute  of  limita- 
tions, 517. 
defendant's  possession  bv  the  rule, 
519. 
Defendant's  evidence  in  general : 

legal  title  in  some   other  person, 

520 
outstanding  term,  522. 

when  surreniter  oresumed,  ib. 
not  to  be  set  up  oy  tenant  or 
mortgagee,  524. 
Ejectment  by  different  peisons, 

1.  by  t<  "na-il  in  common,  517,  519. 

2.  by  landloid  against  tenant.     See 

Landlord  and  Tenant. 

3.  by  mortgagee,  534 

4.  by  tenant  by  elegit,  536. 

5.  by  conusee  of  statute  merchant, 

ibid. 

6.  by  assignees  of  bankrupt  for  his 


INDEX. 


EJECTMENT— con/jm^ed'. 

rt-al  propiTi)    See  Bankrupt' 

«/• 

must  prove  bi»rgain  and 
sa)e  eiiiollcfl  before 
dmiise,  536 

7.  by  parson  for  his  parsonyge,  626. 

8.  by  copyholder.   See  Copyholder. 

9.  by  li'id  tor  a  fotteiture.  See  Co- 

pyholder. 
ELEGIT, 

■  jpctnient  on,  536, 
ENDOWMENT, 

proved  by  ecclesiastical  survey,  and  per= 
ceptioii  of  small  tithes,  129. 

whiih  gives   right  to  small  tithes 
of  ar;  ides  of  modern  introduc- 
tion, ibid, 
should   come  from  the  custody  of 
some  person  connected  by  estate 
with  the  living,  i34. 
ENROLMENT,  61.  165. 
ENTRY,  actual, 

1.  To  avoid  fine, 

wlien  necessary,  511. 

nr.t  if  levied    by   tenant  for 

years,  512. 
or  by  tenant  in  common  be- 
fore ouster,  ibid. 
or    without    proclamations, 

ibid, 
or  where  ejectment  broughj 
bt  fere  proclamations  com- 
plete, ibiil. 
Who  may  avail  himself  of, 
pirty  assenting,  511. 
remainder-man,  ibid, 
proof  of,  512. 

action  brought    within  a  year, 
519. 

2.  To  avoid  the   statute  of  limitations, 

ibid. 
ENTRIES,  by  deceased  p<'rsons, 

when  evidence,  and  how  proved,  26  to 

33. 
by  steward  charging  himself,  26.  641. 

or  of  having  paid  modus,  27. 
by  officers  of  township  or  parish,  26. 
by  deceased  incumbent,  26. 
by  deceased  lessee  of  impropriate  rec- 
tory, 27. 

what  evidence  of  hand-writing 
in  such  cases,  156. 
by  clerk,  shopman,  or  porter,  29,  30, 
by  solicitor  in  his  bill  book,  30. 

by  midwife  in  his  bill  book,  30. 
by   party  himself  of  copies   of 
letters,  30. 
in  public  books.     See  Books. 
ESCAPE, 

Evidence  for  plaintiflFin  action  for, 

of  prisoner  on  mesne  process,  607. 

See  False  Return. 
of  prisoner  in  execution, 

judgment,    writ,  and    return, 

612. 
of  prisoner  being  incustody,  ib. 


ENTRIES— con/mwecf, 

acknowledgmentunder  statute., 

ibid, 
assignment  by  former  sheriff, 

ibid, 
by  commitment,  ibid, 
by     acknowledgment     under 

rule, ibid. 
Of  escape  : 

by  being  at  large,  613. 
by    refusal    of    gaoler    to 
to  show  him,  it>id. 
Fordefendant: 

on  plea  of  negligent  escape  and  re- 
taking prisoner,  ibid, 
if  prisoner  not  retaken  no  force  ex- 
cuses, 614. 

but  the  act  of  God  or  the  king's 
enemies,  ibid, 
original  debtor   a   witness  in  those 
cases.  Digest,  246,  pi.  3. 
ESTOPPEL, 

what,  and  how  taken  advantage  of  in 

pleading,  71. 
by  what  a  (larty  is  concluded,  43. 
the  doctrine  at  one  time  applied  to  wit- 
nesses, now  ottierwise,  256. 
EVIDENCE,    See  Fresumption. 
General  ml .s, 

1.  affii  inative  to  be  proved,  7. 

2.  must  be  confined  to  the  issue,  10 

3.  the  best  evidence    must  be  pro- 

duced, 15. 

but    not    necessary   to    call 
more  than  one  witness,  ib. 
unless  in  treason  and  perju- 
ry, 19. 
when  Secondary  evidence  ad- 
m  tied,  39.  60.  62.  97. 
EXA\UNAT10N. 

Of  wi'.iiess  on  former  trial, 
how  proved,  95. 

by  magistrate,  62.    See  Depo- 
sitions. 
EXCISE    OFFltJEK.    See    Custo/n-house 

Offic-r. 
EXECL  iOR  AND  ADMINISTRATOR, 

1.  Actions  by,  on  cause  of  action  arising 

to  ti  slator  : 

on  general  issue,  plaintiff  need 
not  to  prove  probate  or  letters 
of  administration,  55". 
nor  will  defendant  be  permitted 
to  show,  they  do  not  exist  or 
are  void  for  want  of  stamp,  iXc. 
ibid, 

aliter,  on  plea  ot  ne  un- 
gues executor,  ibid. 

2.  Actions  by,  on  cause  of  action  arising 

to  themselves: 

must  prove  their  whole  title,  558, 
what  evidence  of  probate  and  ad- 
iDinistration,  ibid. 

defendant     may    controvert 
the  probate,  559. 
by  showing  void  stamp, 
558. 


INDEX. 


EXECUTOR     AND      ADMINISTRA- 
TOR— continued. 

or  bojia  notabUia,  558. 
on  nien  ot  staiuie  of  liniiialions, 
plaintiff  caiiiiot  prove  promise 
to  himself  without  count  there- 
on, ibid. 
3.  Actions  against. 
Pleas  hy , 

general  issue  only  disputes 

the  debt,  559. 
JVe  itnqnes  executor  : 

plaintifFmust  prove  defen- 
dant executor,  ibid, 
by  copy  fioin  book  ia 
ecclesiastical  court, 
or  original  will  prov- 
ed by  him,  ibid. 
or    intermeddling   by 
defendant,  560. 
what  act    will   make  liim 
executor  de  son  tort,  ib. 
Pleiie  adniinistvavit  : 
Plaintiff's  evidence, 
What  proof  of  assets, 
not  an  admission  of 
debt  and  promise 
to  pay  as  soon  as 
he  could,  561. 
or  submission  to  ar- 
bitration, ibid, 
or  payment  of  inte- 
rest on  bond,  ib. 
but     negligence    in 
not        collecting 
debts  is,  ibid, 
inventory  exhibited 
by  defendant,  562 
what  effects  deem- 
ed assets,  ibid. 
Defendant's  evidence, 

what   payments    allowed, 
ibid. 

debts  of  equal  degree, 

ibid, 
expenses  of  funeral, 

563. 
simple  contract  debts 
before     notice       of 
bond,  562. 

how  proved,  563. 
or  bond  before  judg- 
ment not  docketed, 
562. 
how  proved,  563. 
not  interest  incurred 

by  laches,  ibid, 
payment  over  to  in- 
fant executor,  ibid, 
to  rightful  administra- 
tor, ibid, 
not  to  co-executor,  ib. 
retainer  of  debt  due 

to  himself,  ibid, 
bonds,  &CC.  outstand- 
ing, ibid. 
Judgments  against  testator : 


EXECUTOR      AND      ADMINISTRA- 
TOR— continued. 

judgment     must    be 
docketed,  562,563. 
failure    by    defendant 
as  to  one  bond  avoids 
the  wlvile  plea,  565. 
penalty  taken  «s  the 
debt,  unless   repli- 
cation perfraudem, 
ibid, 
creditor  being  ready 
to  take  what  is  re- 
ally   due,    supports 
that  repti&ation,  ib. 
Judgments  recovered  itgainst 
himself: 

if    pleaded    to    bond 
must  appear  to  be 
before  notice,  562. 
on     replication      per 
fraudem,  defendant 
must    prove  consi- 
deration   of    judg- 
ment, 565. 
Action  on  devastavit  : 
Plaintiff  must  prove, 

former  judgment,  execu. 
tion,   and   sheriff's    re- 
turn, 535. 
Defendant  may  prove, 

goods  of  lest:<tor  shown  to 
the  sheriff,  567. 
EXEMPLIFICATION, 

of  English  courts  prove  themselves,  56, 

HI. 
of  foreign  courts  require  further  evi- 
dence, 109. 
EXPLANATION, 

of  written   instruments  when  admitted. 
See  Ambigtdttj . 
EXTORTION, 
Action  for, 

plaintiff  may  sue  sherifT  or  bailiff, 

but  not  both,  607. 
evidence  against  the  sheriff,  ibid. 


FACTOR, 

is  a  witness  for  his  principal  though  di- 
rectly interested,  240. 
FALSE  CHARACTER, 

action  for  giving,  (evidence  to  support) 

483. 
plaintiff  must  prove  the  scienter,  485. 
FALSE  RETURN  OF  FIERI  FACIAS, 
Evidence, 

Plaintiff  must  prove, 

judgment,   writ,    and  return, 

610. 
that  defendant  had  property  in 

county,  ibid, 
notice  to  sheriff,  ibid, 
from   what  time  goods  bound. 

Cll. 
how    far  divested    by   act    of 
plaintiff,  612. 


INDEX. 


FALSE  RETURN   OF   MESNE  PRO- 
CESS, 
Action  foi", 

proof  of  plaintiflT's  debt,  607. 

writ  and  ivturn,  608. 

caption,  ibid. 

refusal  to  lake  after  notice,  ibid. 

defendant  at  large  after  return  of 

writ,  ibid, 
bail  put  ill  alter  the  end  of  the  terra 

no  defence,  610. 
but  if  before  rule  to  bring  in  body 
ex|)ires  it  is,  ibid. 
FATHER,  (putative,) 

not  conjp^  liable  to  prove  himself  so,  258 
but  may  be  examined  if  he  chose, 
257. 
FEME  COVERT, 

admissions  by,  do  not  bind  husband,  36. 
answer  by,  does  not  bind  htr,  85. 
promise  by,  does  not  bind  her  after  his 
death,  437. 
FINE, 

How  proved, 

indentures  by  the  chirograph,  pro- 
clamation by  examined  topj,  61. 
its  eflTect  when  levied  by  tenant  for 
life,  510. 

bj  tenant  for 

years.  512. 

by   tenant   in 

common,  ib. 

Entry  to  avoid, 

not  necessary  when  levied  bj  tenant 
for  years,  or  tenant  in  common, 
before  ouster,  ibid 
or  when   no  proclamations  made, 

ibid, 
or  when  ejectment  commenced  be- 
fore proclamations  complete,  ib. 
within  what  time  to  be  made  in  gene- 
ral, 510. 
when  plaintiff  under  disability,  517. 
in  what  form,  511. 
FISHERY.     See  River. 

action  for  fi&hing  in,  494. 

not  necessary  to  prove   the  actual 

taking  of  fish,  ibid, 
mode   of  fishing  in  one  part  of  the 
river  evidence  of  right  in  another 
part,  291. 
FLEET  BOOKS, 

no  evidi-nc  in  any  case,  133. 
FOREIGN  ATTACHMENT, 

evidence  of,  127. 
FOREIGN  COURT, 

inactions  on  its  judgments  or  sentences, 
the)  are  evidence  prima  facie  only, 
101. 

but  in  other  cases  conclusive,  102. 
as  in  acquittal  of  crime,  ibid, 
or   deciding   the   validity   of  mar- 
riage <:ontracttd  there,  103. 
or  when  deciding  on  the  law  of  na- 
tions, 104. 
as  in  the  case  of  capture,  107. 


FOREIGN  COURT— •co?ift;mfit/. 

and  our  couris  cannot  look  into  the  evi- 
dence on  which  they  decide,  105. 
but  if  it  appear  that  they  decided  on  ar- 
bitrary ordinance  of  their  own  coun- 
try, not  acknowledged  by  this,  the 
sentence  is  void,  108. 
so  it   the  court  be  not  regularly  esla= 

blished,  ibid, 
how  the  sentence  is  to  be  proved,  ibid. 
Their  seals, 

how  proved,  110. 
FOREIGN  LAWS, 
Unw!  ilten, 

iiinst  be  proved  by  witnesses,  ill. 
Wntteti. 

T'ust  be  proved  by  copies,  ibid. 
FORFEITURE.    See  Ejectment. 
FORGERY, 

Evidence  to  prove, 

want  of  similitude  of  hand-writing, 

155, 
forgery  of  other  instrument  not  ad- 
missible, ibid, 
nor  witnesses  belief  from  other  con- 
siderations  than  the  want  of  si- 
militude, ibid, 
inspection  of  other  papers  by  jury, 

ibid, 
want  of  genuineness  of  hand-writ- 
ing, by    persons  not  acquainted 
with  thai    of   the  individual    in 
question,  156. 
who  may  be    witnesses  on  indict- 
ment,218. 
Digest,  244. 
FRAUDS,  (Statute  of,) 

provisions  of,  as  to  contracts,  312. 

extends  only  to  them  while  unexe- 
cuted, 332. 
Particular  provisions: 

1.  as  10  promise  to  charge  an  exe- 
cutor, 312. 

2.  for  the  debt  of  another,  ibid. 
What  is  so  considered, 

a  collateral  promise  in  aid  of  his 
credit,  315. 

but  not  a  direct  promise,  whereby 
party  promising  becomes  the  ori- 
ginal debtor,  319. 

nor  where  there  is  a  new  conside- 
ration, 319. 

as  in  consideration  of  landlord  not 
distraining  things  in  possession  of 
defendant,  ibid. 

or  of  the  creditor  giving  up  things 
on  which  he  had  a  lien,  ibid. 

or  in  consideration  of  withdrawing 
record  in  an  action  of  tort,  320. 

or  where  there  is  a  moral  obliga- 
tion, 319. 

but  if  the  promise  be  for  the  debt 
of  another,  and  also  to  do  some- 
thing also,  no  action  lies  on  any 
part  of  it,  314. 
How  long  the  obligation  continues.  See 
Guarantee, 


INDEX, 


FRAUDS,  (Statute  oi,)—contimted, 

3.  in    consideratiou   ot    marriage, 
31-2. 
does  not  extend  to  casts  of  mu- 
tual promises  to  marrx  ,  320. 
but  to  promises  to  paj  money, 
&c.  ibid. 

4.  for  the  sale  of  lands,  312. 

extends  to  sale  of  growing  grass, 

Ike.  320. 
but  not  ot  potatoes  completely 

grown,  ibid. 

5.  an  agreement  not  to  be  wholly 
performed  within  a  year,  312. 

is    not    taken    out    of  statute 
though  part  performed,  321. 
does  not  extend  to  contingen- 
cies which  may  or  may  not 
happen  within  that  time,  ib. 
as  to  pay  money  when  a 

ship  arrives,  ibid, 
or  at  the  death  of  person 
promising,  ibid. 

6.  on  agreement  for  sale  of  goods  of 
the  value  of  lOl.  or  upwards,  un- 
less part  of  money  paid,  or  part 
of  goods  delivered,  312. 
extends  to  executory  contracts, 

321. 

but  not  to  work  to  be  per- 
formed, ibid. 
What  a  part  delivery, 

weighing  off  goods,  322. 

buyer  selling  part  to  a  third  person, 

323. 
delivery  of  key  of  warehouse,  3*22. 
transfer  ot  horse  from  one  stable  to 
another,  ot  a  niaii  canyingon  the 
distinct  business   of  livery-stable 
keeper  and  horse  di^aler,  322. 
but  not  the   mere   measurinsi-  out 
corn,  which  was  to  bf   kept  by 
the  seller  till  called  for,  323. 
note  to  a  third  person  to  deliver 

them,  ibid, 
delivery  (if  sample  after  weighing  it^ 

ibid, 
but  not  of  mere  sample  before  sale, 
which  is  not  intended  to  be  part 
of  thing  sold,  ibid. 
As  to  the  form  of  rncmorandum.    See 
Stamps. 

1.  what  a  signature  within  the  sta- 
tute : 

an   entry  by  auctioneer  of  the 

sale,  323. 
and  this  whether  of  lands  or 

goods,  324. 

2,  what  a  sufficient  memorandum  : 

a  letter  from  a  father  saying, 
he  will  give  his  daughter  a 
particular  sura  for  her  por- 
tiou,  325. 

his  signature  as  a  witness  to 
marriage  articles,  settling 
the  sum  recited  to  be  given 
by  him,  ibid. 


FliAUDS,  (Statute  o^,)— continued. 

a    bill  ot    pMiccLs,  "  Mr,   A. 

boughi  ot  If."  ibid. 
a  letter  from  deten'laul's  attor- 
ney, promising  to  pay  with- 
out  mentioning  the  sum,  or 
the  creditor's  namt ,  32G. 
but  not  a  memorandum  of  the 
buyer's  clerk,  of  his  having 
bought  without   naming  the 
buyer,  325. 
or  such  an  entry  by  the  seller's 

clerk,  328. 
or  a  book,   entitled  "Shake- 
speare's Subscribers,    their 
Names,"  without  reference 
to  any  prosp"Ctus,  ibi<l 
nor  a  letter    trom  the  defen- 
dant, stating  that  the  articles 
were  not  worth  the  money, 
and   therefore   returning  it, 
ibid, 
nor  ihe  defendant's  confession 
in    an  answer  in  Chancery, 
322. 
nor  any  writing  not  stating  the 
consideration   ot   a   contract 
within  4tli  section,  326. 
aliter  of  conf.act  within  17th 
Sfction,  ibid, 
provision  of,  as  to  wills,  57(1,  571. 
See  title    '  Will: 
FRADULENT  ASSIGNMEN  l', 
statute  of  Elizaij.-lh  as  to.  603. 
what  proof  rt  quired,  ibid 

when  possession  necessary,  ibid. 
Twine's  case,  604. 
cases   where   possession  of  grantee    is 

considired  as  fraudulent,  ibid, 
assignment  to  creditors  for  lawful  puf- 
pos«  s,  606. 
FREEHOLD, 
Evidence  of. 
See  Seisin. 


GAME  LAWS, 

Action  on,  (See  Statutes.) 
title  to  manor  not  to  be  tried  in  action 

on,  456 
but  plaintiflT  may  show  by  evidence, 
that  defendant's  deputaliuu  is  with- 
out colour  ot  title,  ibid. 
GAOLER, 

action  against,  600. 
See  Escape. 
GAZETTE, 

when  evidence,  124, 
€;ENERAL  ISSUE, 
in  general,  296. 
evidence  on  nil  debet,  452. 

noil  assumpsit,  402. 
non  cepit,  501 
non  estfiLCtum,  438. 
not  guilty  in  case,  465. 
in  trover,  427. 
in  trespass,  501 , 


INDEX. 


tiOODS,  sold  and  du-liveied, 

Proof  ot", 
by  (Itlivtry  to  a  carrier,  386, 
at  the  defendant's  house,  387. 

contract  by  defendant's  wife,  when 
hiridin_i>;,  ibid. 

VaUie  of,   not    entered  into  when  pur- 
chased lor  a  certain  sum,  386. 
unless  in  case  of  fraud,  ibid. 
GRANT, 

when  presumed,  39.   See  Presumption. 

plea  of  lost  grant  and  proof  of,  506. 
GCAKANTEE, 

must  be  in  writing,  and  contain  the 
whole  contract,  326.  See  Frauds, 
statute  of. 

when  continuing  and  when  satisfied,  319. 

surety  not  liable  if  principal  tiusted  to  a 
larger  amount,  ibid. 

evidence  against,  see  Goss  \.  JVatling- 
ton,  Addenda. 

H. 
HAND-WRITING, 

how  proved,  154. 

comparison  of  hands,  what  it  is,  155. 
not  admitted  in  common  cases,  ibid. 
aliter,  in  cases  of  old  documents 
coming  from  proper  custody,  ib. 
opinions  of  witnesses  as  to  its  authen- 
ticity, ib<d. 
when  jury  permitted  to  compare  pa- 
pers, 156. 
HEARSAY, 

distinction  between  hearsay  and  repu- 
tation, 17. 
declarations  post  litem  motam  not  ad- 
mitted, 23. 
nor  hearsay  of  particular  fact,  ibid. 
Reputation  allowed  : 

in  cases  of  pedigree,  22. 
of  custom,  ibid, 
but   not  of  private  prescription  or 
right,  28. 

cases  in  this  point,  Appendix, 
No.  I. 
exception  when  several  persons  inter- 
ested, 524. 
Declarations  of  deceased  members  of  fa- 
mily admitted, 

to  prove  marriage,  22. 
legitimacy,  ibid, 
birth  of  child,  and  time  of,  25.' 
but   not  as  to  the    place  where  the 
birth  hai)pi-ned,  25. 
declarations  of  deceased  tenant  sts  to  who 
was  his  laiidloril,  admiiteii,  20. 
of  paiishioners  as  to  the  boundary 

of  parish,  26. 
or  as  to  parish  modus,  ibid. 
HEIR, 

Proof  of  title  by, 

seisin  of  ancestor,  568. 

what  possession  evidence  of,  ibid. 

relatioiship,  569 

not  ra^re  re;iUtalion  of  being  heir,  ib. 

poithuraous  birth,  572. 


HEIR — contijiued. 

what  evidence  sufficient  to  prore 
non-access,  571. 
Action  against  on  specialty  debt  of  an- 
cestor. 
His  pleas, 

I'ieiis  per  descent,  generally,  596, 
plaintiff's  evidence  thereon,  ib. 
deferidant's  evidence,  597. 
rieiis  per  descent,  ai  commence- 
ment of  action,  598. 
pliuntifT'sevidei.ce  thereon,  ib. 
HIGHWAY, 

action  tor  nuisance  in,  489. 
in  what  cases  surveyors  of  highways  are 
^'         wimesses,  Diges'  238. 
HOUSES  OF  LORDS  AND  COMMONS, 
co|)it  s  of  the  minutes  of  their  judgments 

eridence,  62. 
but  their  resolutions  not  evidence  of  the 
fact  resolved.  84. 
HUE  AND  CRY.     See  Hundred. 
HUNDKED, 

1.  Evidence  in  action  against,  on  statute 
ol  hue  and  erf,  459. 
Plaimiff's  evidence, 
that  robbery  was  in  the  day-time,  ib- 
in  an  open  pl»ce,  ibid, 
within  hundred,  ibid, 
on  a  week-day,  unless  party  on  his 
way  to  church,  ibid. 
Notice  to  inhabitants  of  town  near, 
to  constable,  460. 

in  gazette  within  twenty  days,  ibid. 

what  such  notice  must  contain,  ib. 

oath   before  justice   of    the    peace 

within  same  time,  461. 

must  be  taken  by  person  actually 

robfe.^d,  ib. 
■what  such  oath  must  state,  463. 
bond  given  foi  payment  of  costs  in 

case  of  action  failing,  461. 
conimencemeiit  of  action,  ibid, 
plaintiff  may  himself  be  a  witness 
when  no  other  person  present. 
223. 
and  inhabitants  of  the  hundred  for 

the  defendant,  ibid, 
no  more   th<n  2pOZ.  recoverable, 
unless    two   peisons    together 
at  the  time  of  the  robbery,  462. 

2.  Evidence  in  aciinns  on  the  riot  act  as 
eIllarg^d  by  slat.  57  Geo.  3,  ib. 

Plai'.  if  inusi  prove, 

value  of  property  destroyed,  463. 
riot  either  felonious  Of  amounting  to  & 

misderat-atiour,  ibid, 
goods  Of  furniture  destroyed  Of  Stolen 
at  same  time,  ibid. 

3.  Evidence  inaciionson  other  Statutes,  ib. 
HUSBAND  .\ND  WIFE. 

1.  Actio"  by, 

when  necessary  to  prove  their  marriage, 
5-iU 

2.  Ac(ion  against. 
Cohabitation  sufficient  proof,  540. 

3.  Action  by  husband  alone.  SeeCnmCoR. 


INDEX. 


HUShA^Ti— continued. 

when  neci  ssary  to  prove  cnarriage,  542. 
lor  harbouring  wife,  543. 

when  wife's  representations  evidence 
against  husbanil,  ibid. 
4.  When    witnesses  for  or   against  each 
othei-,  247. 

neither   during   marriage   nor  after  di- 
vorce, 247,  248. 
either  to  criminate  or  contradict  each 

other,  249. 
or  for  third  person  jointly  indicted,  ibid, 
but  wife  may  give  evidence  to  exonerate 
third  person  from  a  debt,  though  she 
incidentally  charges  her  husband,  ibid. 
Exception  to  the  rule, 
cases  of  personal  violence,  248. 
wife  de  facto,  and  not  de  jure,  as  se- 
cond wife  on   indictment  for  biga- 
my, ibid, 
or  forcible  abduction,  ibid, 
or  wife  divorced  by  net  of  parliament, 
to  prove  f:.cts  happening  alter  the 
divorce,  ibid. 

5.  In  what  cases  they  may  be  called  to 
deny  their  marriage,  256. 

on  questions  of  the  legitimacy  of  their 

children,  ibid. 
So  the  wife  to  prove  her  own  adultery, 

257. 
but  not  the  non-access  of  her  husband,  ib. 

6.  Admissions  and  representations  by  wife: 
When  evidence  against  husband, 

only   receivable   as  part  of   the   res 
gesta,  38. 
What  considered  such : 
representations  at  time  of  elopement, 

ibid, 
state  of  her  health,  40. 
What  not: 
representation  of  by-gone  transaction, 

38. 
acknowledgment  of  receipt  of  money 
earned  by  her,  36. 

or  due  to  her  as  executrix,  37. 
or  from  her  before  marriage,  ib. 


IDIOT, 

cannot  be  a  witness,  195, 
who  considered  such,  584. 
ILLEGITIMACY.    See  Legitimacy. 
IMPLIED  PKOMISE, 
Evidence  of,  385. 

no  inaplication  when  agreement  in  writ- 
ing, 398. 
IMPROPRIATION, 

may  be  proved  by  pope's  license,  135. 
INCORPOREAL  HEREDITAMENT, 

Evidence  of  title  to,  489 
INDEMNITY  AND  CONTRIBUTION, 
When  the  law  imiilies  promise  of, 
in  case  of  joint  liability,  389. 
or  of  surety,  390. 
When  not, 
cases  of  tort,  393. 
illegal  contracts,  ib. 

4  U 


INFAMOUS    PERSONS.       See    Dying 

Declarations.    Witnesses, 
INFANCY, 

is  evidence  on  non-assumpsit,  434, 

bill  not  on  non  est  factum,  441. 
Subsi-qu'  lit  ratification  : 

defendant  to  show  time  of  birth  on  re- 
plication of  subsequent  ratification, 
434. 
bare  acknowledgment  not  a  ratifica° 

tion,  ibid, 
nor  promise  to  pay  part,  435. 
Necessaries: 

what  considered  such,  ibid. 

not  things  bought  to  sell,  ibid, 

or  money  lent,  ibid. 

or  account  stated,  ibid. 

whether  necessaries  or  not  is  a  mixed 

question  of  Jaw  and  fact,  ibid, 
onus  on  plaintiff,  435. 
and  defendant  may  show  provision  of 
friends,  279. 
INFORMERS, 

When  witnesses,  226,    Dieest. 
INFIDEL, 

inav  be  a  witness,  205. 
INFRA  QUATUOR  MARIA, 
Explan'Uion  of  the  phrase,  571. 
case"*  upon  it  as  to  access,  572. 
INHABITANTS  OF  PARISHES,  Sec. 
When  witnesses.     See  Parishioners. 
INQUISITIONS, 
Public: 

evitlence  of  private  rights,  128. 
Private : 

no  evidence  against  third  persons,  130» 
INROLMENT  OF  DEEDS, 

clerk's  indorsement  evidence  of  inrol» 

ment,  61. 
when  iiirolment  evidence  of  deed,61.l66a 
INSANITY, 

evidence  of,  585. 

idiot,  who  so  considered,  ibid, 
lunatic  or  madman,  ibid. 
Lord  Thurlow's  rule  as  to,  586. 
Observations  ihi-reon,  ibid. 
INSIMUL  COMPUTASSIT, 

evidence  on,  394. 
INSOLVENT,  68. 

INSPECTION    OF    PUBLIC    AC- 
COUNTS. 
Of  the  proceedings  of  courts  of  justice ; 
when  granted  to  the  parties  interest 
ed,  137. 
Of  public  offices: 

grunted  to  the  parties  interested,  ib. 
but  not  to  strangers,  l.J8. 
Of  corporation  books,  &c. 

granted   to  members  of  corporation 
when  disputing  inter  se ,  138. 
Of  court-rolls  of  'uanor  : 

granted  to  tenants  of  the  manor  when 

disputing  iriter  se  or  with  the  lord, 

ibid. 

but  not  to  atraneers disputing  with  the 

lord  or  cnmmoners,  138. 

inspection  not  granted  tor  the  purpose 


INDEX. 


INSPECTION,  hie..— continued. 

of  enabling  party  to  maintain  criminal 
prosecution  against  the  members  of 
the  public  body  in  possessiou  of  the 
documents,  13S. 

informations   in  quo  warranto  not 
considered  so,  139 
INSTITUTION  AND  INDUCTION, 

how  proved,  6'24. 
INS!  RUMEN  J'S,  Private.     See  Deetls. 
INSURANCE,  Policy  of, 

evidnnce  m  action  on,  344. 
INTEREST.     See  Witness. 
INTERPRETER, 

Between  attorney  and  client, 

bound  to  same  secrecy  as  the  attor- 

n-'y,  251. 

JOINT  CONTRACTOR.  See Matetnent. 

JD  action?  for  a   breach    of  contract,  the 

plaintiff  must  recover  against  all  or 

Bone,  301. 

even  though  he  declare  in  tort,  ibid. 
aliter,  if  a  tort  were  actually  com- 
mitted by  one  only,  without  any 
fHult  in  the  others,  ibid. 
JOINT  TRESPASSER, 

when  a  witness  for  plaintiflT,  204.  216. 
for  defendant,  2'24. 
JOURNALS  OF  PARLIAMENT, 
proved  by  copies,  84. 
the  resolutions  of  either  house  no  evi- 
dence of  the  facts  resolved,  84. 
ISSUE, 

the  evidence  must  be  confined  to  it,  62, 
JUDGMENT, 

of  superior  courts  must  be  formally  en- 
tered before  it  can  be  proved,  62. 
and  the  whole  copi^^d,  ibid, 
but  the  minutes  of  the  House  of  Lords 

sufficient,  62. 
so  of  inferior  courts,  112. 
How  proved  : 

by  an  exemplification,  58.  60. 
by  an  examined  copy,  60. 
For  or  against  whom  evidence  : 
In  civil  cases, 

the  party  only,  73. 
or  one  privy  in  estate,  ibid, 
or  person  under  whom  he  acted,  "4. 
unless  in  cases  of  public  rights,  75. 
Effect  of. 

As  to  personal  property, 

conclusive  as  to  the  right,  65,  69. 
As  to  real  property, 

conclusive  in  all  actiens  of  equal 
degree  as  to  the  fact  directly 
found,  71. 
but  not  in  actions  of  a  higher  na- 
ture, 72. 
nor  of  facts  not  directly  in  issue,  ib. 
as  in  mere  possessory  actions 
■where   the  general  issue  only 
is  pleaded,  ibid. 
Qu.  Whether  conclusive  on  ge- 
neral issue,  66, 79. 
In  criminal  cases. 
Conviction, 


\ 


JUDGMENT— con^mi^f/. 

vhen  and  against  whom  evidence 

in  a  civil  suit,  75. 
never  for  a  party  who  was  exa= 

mined  on  an  indictment,  78. 
only  evidence  of  the  fact  directly 

found,  79. 
acquittal  no  evidence,  ibid, 
general  observations  as  to  the  effect 

of  verdicts,  &c.  120. 
may  be  shown   by  third   persons  to 

be  fraudulently  obtained,  121. 
of  ouster  against  A.  admissible,  but 
•  not  conclusive  against  B.  123. 
conviction  of  principal  does  not  pre- 
vent accessary  from  proving  his 
innocence,  ibid. 
Of  inferior  courts: 
how  proved.     Vide  supra. 
cause  of  action  may  be  shown  to  have 
arisen  out  of  jurisdiction,  113. 
JUSTICE  OF  PEACE, 
action  against,  617.     - 
The  statutes : 
21  Jac.  1. 
7  Jac.  1.     .      f.-j 
24  Geo.  2.    >    °^'- 

42  Geo.  3.  J 

43  Geo.  3.  429. 

in  what  cases  notice  necessary,  CI 8. 
the  tbrm  of  notice,  ibid, 
when  malice  must  be  proved,  619. 
■when  conviction  a  defence,  619,  623. 
when  proof  of  commencenieui  of  action 

required,  623. 
period  of  limitation,  622. 
case  of  continuing  trespass,  623. 
tender  of  amends  and  proof  thereof,  ib. 


LANDLORD  AND  TENANT.     See  As- 
signee.    Rent.     Use  and  Occupation. 
In  what  cases  the   landlord  is  a  witness 
to  prove  the  extent  of  the  thing  de- 
mised, 245. 
proof  of  agreement.     See  Use  and  Oc- 
cupation.    Stamps.    Lease. 
Evidence  in  action  by  landloid, 

1.  In  action  for  mismanagement  of  farm, 
400. 

evidence  of  holding,  ibid, 
of  the  custom  of  the  country,  ibid, 
when  contract  governed  by  it,  ibid. 

2.  In  action  for  double  the  yearly  value  at- 
ti-r  notice  by  landlord,  457. 
Plaintiff's  evidence : 

notice  must  be  in  writing,  ib. 
What  notice  sufficient, 

as  to  time,  458. 

as  to  person  giving  notice,  ibid. 

receivL-r  of  Court  of  Chancery,  ib. 

or  agent,  ib. 

one  tfiiant  in  common  for  his  moie- 
ty, ibid. 

but  not  one  joint-tenant,  ibid, 
no  other  demand  necessary,  ibid. 


INDEX. 


LANDLORD,  hc.^continued. 
Defendant's  evidence  : 

that  he    held  over  under  a  fair  but 
mistaken  notion  of  title,  459. 

3.  In  action  or  distieas  for  double  rent  af- 
ter notice  by  tenant, 

the  notice  need  not  be  in  writing,  457. 

4.  In  ejectment  by  landlord  on  determi- 
nation  of  lease,  proof  of  lease.      See 

Deed. 
6.  In  ejectment  on  notice  to  quit,  526. 
proof  of  cnmmenci'ment  of  tenancy ,  ib. 
cnstomary  time  of  quitting,  527. 
when  writing  must  be  produced,  528. 
Notice  to  quit. 
By  whom  given, 

tenant  in  common  for  his  moiety, 

530. 
joint-tenant,  ibid, 
agent,  ibid. 

receiver  of  Court  of  Chancery,  ib. 
Service  of, 
at  dwelling-house,  529. 
on  one  of  several  tenants,  ibid, 
on  original  tenant  who  has  under- 
let, ibid, 
when  there  is  a  subscribing  witness, 

530. 
when  rendered  unnecessary  by  dis- 
claimer, ibid, 
when  tenant  may  dispute  landlord's 

title,  525. 
•what  is  proof  of  subsequent  waver,530. 
6.  In  ejectment  on  forfeiture  of  lease, 
for  non-payment  of  rent,  532. 
in  cases  within  stat.  4  Geo.  2.  ib. 

not  necessary  to  prove  a  demand, ib. 
in  cases  not  within  the  statute  must 
prove  a  demand,  533. 
how  to  be  made,  ibid. 
Waver  of  forfeiture, 

by  acceptance  of  rent,  &c.  534. 
does  not  avail  where  the  lease  is  ab- 
solutely avoided,  &c.  ibid. 
LEADING  QUESTION, 

Not  allowed  either  on  a  vivd  voce  exami- 
nation or  written  interrogatory,  97, 258, 
278. 

when  depositions  suppressed  as  lead- 
ing, 97, 
when  not,  ibid. 
LEASE, 
must  be  stamped  as  such,  311,  398. 
what  instrument  is  construed  to  be  so, 
and  what  an  agreement  for,  398. 
Vgreement  for, 
what  instrument  considered  a  lease  and 

what  a  mere  agreement,  398. 
what  action  a  landlord  may  maintain  on 
the  agreement: 

use  and  occupation,  394. 
assumpsit   for  mismanagement  of 
farm,  400. 
LEGITIMACY, 
Witnesses : 

when   husband   and  wife  may  be   wit- 
nesses as  to.  See  Husband  and  Wife. 


LEGITIMACY— coMi;m?/«d. 

declarations  of  lather  or  mother  after 
death  evidence  to  prove  adulterous 
connection,  22. 

but  not  to  prove  non-access,  ibid, 
general   evidence  of  mother's  inconti- 
nence when  received,  573. 
general  reputation  of lamily  evidence ,22. 
when  access  shall  be  presumed,  572. 

when  not,  ibid, 
time  of  g'*staiion  a  question  of  fact,  not 

of  law,  ib. 
register  not  controlled   by  private  me- 
morandum of  pnrson.  131. 
LETTERS  OF  ADMINISTRATION, 68. 
LETTERS  PATENT, 
How  pioved, 
by  exemplification,  58. 
presumption  of,  from  length  of  time,  46. 
LEX  LOCI.     See  Reputation. 
judgment  between  third  persons  evidence 
of,  75. 

See  Depositions. 
LIBEL.     See  Slander. 
LIBERUM  TENEMENTUM, 
evidence  On  general  issue,  505. 
when  acts  of  ownership  on  one  part  of  a 
river  or  land  will  be  evidence  of  the 
right  to  another,  291. 
LIFE, 

the  continuance  of,  in  general  presumed, 
10,598. 

aliter,  where  such  presumption  would 
imply  a  crime,  as  that  a  first  husband 
was  living  at  the   time  of  a   second 
marriage,  10,  598. 
LIGHTS, 

action  for  obstructing,  489. 
What  evidence  of  right  sufficient, 
twent)'  years  undisturb(-(l  po&session,489. 
enjoyment  by  stranger  who  conveyed  to 

both  parties,  298. 
but  the  plainiiff  cannot  claim  lights  for 
larger  purpose  than  accustomed, ibid, 
LIMITA  1  ION  OF  ACTIONS, 
not  evidence  on  ml  debet,  452. 
In  contract : 

What  wiihin  the  statute, 

a  long  unsettled  acoount  on  one  side, 
422. 

but  not  mutual  accounts,  ibid. 
What  revived  by  subsequent  promise  : 
not  cases  of  negligence,  422,  423. 
or  breach  of  warranty,  422. 

but  debts  on    executed    contracts 
are,  423. 
What  acknowledgment  sufficient: 
various  instances,  422,  423. 
by  one  of  several  debtors,  42S. 
Special  replication  : 
writ  sued  nut,  425. 
continuance  thereof,  426. 
disability  of  pUiniiffor  defendant, 427. 
wh;it  disability  sufficient,  517. 
LIS  MOTA. 

declarations  made  after,  on  the  point  in 
dispute,  not  receivable,  25. 


INDEX. 


LIS  MOT  \—'Continved. 
nor  dt-posiiions,  '25. 
aUter,  it  on  another  point. 
LOG  BOOK.     Se     Books. 
LOSS  OF  A  WRITTEN  L\  STRUMENT 
whm  sufticieit  pront  of  to  mable  a  parly 
to  give  eviiJtnce  of  couteuts,  140. 
LUNACY, 

how  proved,  583. 

when  Ih    onus  lies  on   the  party  al- 
leiiinj;  a  lucid  interval,  586. 
LUNATIC, 

when  a  witntss,  195. 

M. 

MAHOMEDA-V, 

ma)  be  a  witness,  205. 
MALICIOUS  ARREST, 
action  for,  482. 
Plainiift'niusi  prove, 
affidavit  of  debt,  ibid, 
writ  and  return,  ibid, 
sheriff's  warrant  in  some  cases,  ibid, 
cause   ended   by  record,  or   rule  of 

court,  ibid, 
order  of  judge  not  sufficient,  ibid. 
KOr  order   of  chancellor  for  supersf- 

deMS,  ibid, 
want  of  probable  cause,  ibid. 

(his  not  inferred  from  result  of  a 
reft-reiice,  ibid. 
MALICIOUS  PROSECUTION, 
action  for,  478. 
Plaintiff  must  prove, 

prosecution  ended  by  copies  of  pro- 
ceedings, ibid 
or  production  of  origjinal  record,  479. 
thatdefiiidunt  was  the  prosecutor,  480 

grand  juror  may  prove  this,  481. 
want  of  probable  cause,  ibid. 

this  not  inferred  from  his  abandon- 
ing the  prosecution,  ibid. 
how  far  the  defendant's  infoririation 
will  be  considered  as  true,  ibid. 
MANOK, 

evidence   of  custom,  &c.     See    Copy- 
holder.    Custom. 
when  the  custom  of  one  manor  will  be 
evidence  of  that  of  another,  291. 
MAP, 

no  evidence  against  third  persons,  134. 
aliter,  between  two  persons  each  claim- 
ing under  person  making,  ibid. 
MARKET, 

twenty  years  peaceable  possession  evi- 
dence of  the  right,  489. 
twenty  years  7ion  user  by  plaintiff,  and 
enjoyment  by  defendant   or  another, 
evidence  against  right,  492. 
MARRIAGE, 

evidence  of,  as  against  the  parties,  45. 

against  s'rarigirs,  139. 
How  proved  ; 
by  register,  133. 
what  considered  so,  133. 
by  reputation,  22. 


MASTER, 

proof  in  action  for  seducing  servant  or 
app.enticf ,  .t45. 
MEMORANDv.M, 

Ot  deceased  persons, 

when  tvidence,  25  to  33.    See  £n- 
iries. 
ME.MORY, 

when  witness  may  refresh,  by  referring 
to  memorandum,  278. 
MESNE  PROFITS, 

recovery  of  in  ejectment,  531. 
action  for,  537. 

.MINISTER'S  RETURN, 

evitlence  without  proving  the  commis- 
sion, 63. 
its  effect.     See  Modut. 

MODUS, 

Evidence  in  cases  of: 

in  general,  and  the  effect  of  ancient 

documents,  629. 
when  evidence  of  custom  of  A.  ad- 
missible to  show  custom  of  B. 
291. 
For  the  parson  : 

entry  by  the  incumbent  or  his  col- 
lector of  receipt  of  tithes,  26. 
by  lessee,  ibid. 

terrier  ."signed  by  churchwardens  or 
parishioners,  134. 

provided  it  comes  out  of  proper 

custody,  ibid. 

the  register  ofdeao  and  chapter  of 

Litchfield     proper    custody     as 

against  one  of  the  prebendaries, 

ibid. 

but   not  the   chest   of  college    as 

against  the  parson,  ibid, 
nor  the  British   Museum  or  Bod- 
leian Library,  ibid. 
For  the  land-owner: 

declarations  of  deceased  land-own- 
ers, as  to  the  existence  of  a  paro- 
chial inodfas,  26. 
entry  b\  steward  of  land-owner  of 
payment  of  particular  modus,  27. 
terrier,  though  not  signed   by  the 

parson,  134. 
receipt  b>  former  incumbent,  156. 
what   evidence   required   of  hand- 
writing in  such  cases,  ibid. 
MONEY  HAD  AND   RECEIVED.     See 
Vnidor  and  Vendee.     Warrunty. 
sheriff's  i  etnrn  of  levy  no  proof  of  pay- 
ment to  'lefendant,  82. 
money  recovered  under  legal  proceed- 
ings cannot  be  recnvei-ed  hack,  66. 
MONEY    PAID    INTO    COURT.      See 

Payment  of  ^^'Invev^  c3c. 
MONEY    PAID     TO     IHE    USE    OP 
THE  DEFENDANT, 
•   evidence  in  action  for,  3p9. 

that  it  was  paid  at  defendant's 

request,  ibid, 
or  in  consequence  of  obligation, 
ibid. 


INDEX. 


MONEY  PAID  TO  THE  USE  OF  THE 

DEb'ESDA'ST— continued. 

plamtifFmust  prove  actual  pay- 
ment of  money,  389. 
not  maintainable  by  one  joint 
trespasser  or  tortfeasor,  393. 
or  person  sustaining  a  loss  on 
joint  gambling  account,  ibid. 
MONEY  r.ENT.     See  Indemnity. 
action  for,  393. 

paymrnt    of   banker's    check    no 
proof  of,  ibid. 
MORTGAGEE, 

evidence  in  f-jectment  by,  534. 

N. 

NAVY  OFFICE, 

its  books,  when  evidence,  124. 
NEGLIGENCE, 
action  lor,  486. 
For  keeping  a  mischievous  animal : 

in  cases  of  domestic  animals,  plain- 
tiff must  prove  (lefent!ant's  know- 
ledge of  his  mischievous  disposi- 
tion, 486. 
I  but  this  is  not  necessary  when 
noxious  animal  is  kept,  ibid, 
tor  nuisance  in  obstructing  highway,  487 
for  running  against  carriage  or  ship,  ib, 
di-fendant  liable  for  neglig  nee,  not 
wilful  misconduct  of  servant,  488 
NEW  ASSIGNMENT, 

when  necessary,  and  evidence  upon  it, 
507. 
NEW  TRIAL, 

when  granted,  3.  263. 
NIL  DEBET, 

When  pleadable : 

to  action  on  simple  contract,  452. 
or  where    specialty  only    induce- 
ment, 451. 

so  to  debt  for  penalty,  453. 
Evidence  on : 

debt  satisfied,  452. 
not  the  statute  of  li;nitations  in  ac- 
tion for  a  debt,  453. 
aliter  in  actions  on  statutes,  455. 
NGN  ASSUMPSIT, 
riea  of: 

puts  all  the  facts  in  issue,  and  ena- 
bles the  defendant  to  prove  pay- 
ment or  any  other  fact  which  shows 
that  the  plaintiff  has  no  cause  of  ac- 
tion, 402. 

but  tender,  set  off,  &c.  which 
admit    tlie   action,   must  be 
pleaded,  415. 
NON  CEPIT, 

what  it  puts  in  issue,  501. 
NON  EST  FACTUM, 
What  is  evidence  on  : 

coverture  at  lime  of  making;  deed, 

440.  ^ 

defendant  blind  or  illiterate,  439. 
deed  talsely  read,  439. 
defendant  lunatic  or  drunk,  ibid. 


NON  EST  VkCTVM— continued. 

deed  alteretl  by  plaintiff  after  exe- 
cution, 441. 

or  by  another  person  in  mate- 
rial part,  ibid. 
seal  broktn  off,  animo  cancellandi, 

before  plea  pleaded,  ibid. 
aliter,  if  done  since,  442. 
What  not : 

usurious  consideration,  439, 
infancy,  ibid, 
duress,  ibid. 

the  falsehood  of  any  other  fact  in 
th<'  declaration,  ibid. 
NON  RESIDENCE, 
action  for,  633. 
Statutes : 
21  He 
25 
28 


Hen.8.-| 
Ile.K  8.  I  .,  . . 
Hen.  8.  >'^'^- 
Hen.  8.  J 


43  Geo.  3.  634. 

57  Geo.  3.  ibid. 

Provisions  of  last  statute  : 

time  of  absencH,  634,  635. 
who  within  it,  636. 
place  of  residence,  634,  635. 
keeping  in  repair,  636. 
license  of  absence,  ibid. 
notice  of  action,  637. 
payment  of  money  into  court,  ibid, 
proof  of  benefice,  ibid, 
of  absence,  ibid. 

valucof  living,  ibid, 
of  lici  nse  to  absent,  ibid. 
<xception,  638. 
NOTARY  PUBLIC, 
His  seal, 

evidnnce  to  prove  presentment  of 
foreign  bill,  110. 
NOT  GUILTY, 

When  pleadable, 

to  penal  statute,  454. 
In  case, 

puts  the  whole  declaration  in  issue,  465 
In  trespass, 

pound-keeper  may  justify  detention 

on,  505. 
so  defendant  may  show  liberum  te- 
nemenlum,  507. 
NOTICE  OF  ACTION, 
wlieii  necessary,  437. 
KOTICE  TO  PRODUCE  PAPERS, 
when  necessary,  140,  159. 
not  necessary  to  produce  a  far- 
mer notice,  160, 
or  other  papers  whereof  a  dupli- 
cate is  kept,  ibjd. 
or  document  for  which  the  action 
is  brought,  ibid. 
To  whom  it  may  be  given : 

to  the  parly  or  his  attorney,  159. 
either  in  a  criminal  or  civil  pro- 
ceeding, ibid, 
and  this  is  sufficient  to  enable  the 
party  giving  the  notice,  to  give 
evidence  of  a  document  relat* 


INDEX. 


XOTICE    TO    PRODUCE   PAPERS— 

co?iti?iued. 

ing  to  the  estate  formerly  in 
the  hands  of  the   person  con- 
veying to  the  [>arty  to   whom 
notice  is  given,  159,  160. 
Instruments  produced  under  notice  : 
if  the  party  producing  is  no  par- 
ty to  them,  must  be  proved  by 
the  subscribing  witness,  IGl. 
aliter,  if  he  is  a  party  or 
claims  under  the  deed, 
162. 
NOTICE  TO  QUIT.    See  Landlord  and 
Tenant. 
if  signed  in  presence  of  subscribing  wit- 
ness, he  must  be  called,  146. 
notice  must  be  given   to  produce  it,  if 
no  duplicate  kept,  159. 
NUDUM  PACTUM, 
NUISANCE, 

evidence  in  action  for,  489, 
NUL  TIEL  RECORD, 
proof  on  issue  of,  58. 

O, 
OATH, 

form  of  administering,  206. 
if  witness  says  he  considers  it  binding  as 
administered,  not  to  be  asked  if  he 
considers   any  other  form  more  so, 
207. 
opinions  of  the  Judges   in  the  Queen's 
case  as  to  this  point,  ibid, 
OFFICE  COPIES, 

when  evidence,  61. 
OFFICERS  OF  JUSTICE, 

evidence  in   actions  against,  600.     See 
Co7isiable.     Custom  House    Officer. 
Justice. 
of  the  notice  required,  619, 
ONUS  PROBANDI, 
on  whom  it  lies,  7. 
OPINION.     See  Hand-Writing. 

when  eviilenee  as  to  matters  of  science, 
55.  278. 
ORIGINAL, 

what  entry  considered   such,  so  as  to 
make  acopv  evidence,  134. 
OUSTER,  ACTUAL, 

fine  ot   tenant  in  common  does  not  bar 

without,  512. 
what  facts  amount  to  proof  of,  516.  519. 
OUSTER,  JUDGMENT  OF, 

not  conclusive  against  third  person  de- 
riving title  under  the  person  ousted. 
123. 

P. 
PARCEL  OR  NO  PARCEL, 

declaration  of  tenant  admitted  to  prove, 
23. 
PARDON, 

when  it  restores  competency,  200. 

how  proved,  ibid. 
PARENT, 

eridence  in  action  for  sedaciog  daughter 


PARENTS—confi/it/tftf. 

or  assaulting  child,  544.    See  Seduc- 
tion. 
PARISHIONERS, 
When  witnesses : 

in  all  cases  relating  to  offences  com- 
mitied   against  highway  or  turn- 
pike acts,  238. 
in  cases  of  penalties  not  exceeding 

20;.  ibid, 
in  questions  relating  to  houndarv, 

ibid, 
or  settlement  of  pauper,  ibid, 
or  concerning  bastards,  ibid, 
in     actions    for    money    spent   by 
churchwardens,  ibid. 
PARISH  REGISTERS, 

evidence  of,  and  their  effect,  131. 
not  controlled  by  memorandum  of  cler- 
gyman, 133. 
PARLIAMENT, 
Journals  of, 

How  proved : 

by  examined  copies,  84. 
which  require  no  stamp,  60. 
Effect  of  their  resolutions  : 

do  not  prove  the  fact  resolved,  84. 
{Sedvide  tit.  Proclumalion.^ 
but  recital  in  act  of  parliament  does. 
124. 
PAROL  EVIDENCE, 

when  admitted  to  explain  written,  178. 
See  Ambiguity. 
PARSON, 

evidence  in  ejectment  by,  626. 
PARTICEPS  CRIMINIS, 

when  a  witness  for  prosecutor  or  plain- 
tiff, 204.  216. 
when  for  defendant,  225. 
PARTICULARS  OF  DEMAND, 
Order  for  : 

its  effect,  295. 

the  particulars  must  be  truly  stat- 
ed, ibid, 
on  particulars,  merely  stating  pro- 
missory note,  plaintiff  cannot  go 
into  consideration  if  the  note  fail, 
ibid, 
but    may    recover    interest    if  he 
prove  the  note,  ibid, 
particular  for  horses  scild  to  the  defen- 
dant : 
plaintiff  cannot  prove  money  re- 
ceived for  horses  sold   by  defen- 
dant for  plaintiff,  295. 
but  lime  of  work  done  not  material 

it  it  does  not  mislead,  ibid, 
if  paiticular  wrong,  plaintiff  cannot 
set   il    right    by    notice     without 
judge's  order,  ibid. 
PARTNER.     See  Account  stated. 
admissions  by,  evidence,  86. 
so  is  bis  answer,  ibid, 
not  a  witness  for  his  partner,  225. 

when  he  may  be  rendered  compe- 
tent by  release,  ibid. 


INDEX. 


T\RTNE.R— continued. 

Vith  Digest  i^45,  pi.  4.  246,  pi.  5. 
•    notice  to  one  is  so  to  the  other,  342. 
one  may  rnniiilain  an  action  against  the 
otiier  for  the  sliaie  ot"  goods  brought 
into  parlnershij),  389. 

or  on  account  liquidated,  394. 

but  not  on   an  open  account, 
unless  on  express  covenant, 
389. 
PATENT,  LETTERS, 

proved  bj  exemplificaiion,  58. 
pt-esuraed  from  length  of  lime,  46. 
PAVAIENT, 

Presumption  of, 

from  payment  of  subsequent  de- 
mand, 47. 
from  workmen  being  periodically 

j)aid,  411. 
from  length  of  time,  49.  410. 
Rebutted, 

b}  payment  of  interest,  50. 
but  not.  by  dc-fendaat's  poverty,  50. 
Actual  proof  of, 
to  servant,  41 1. 
to  broker,  ibid. 
to  attorney,  ibid, 
by  bill  of  exchange,  412. 
cash  notes,  ibid, 
check  Oil  baiikei',  ibid, 
remittance  by  post,  ibid. 
Application  ot, 

the  dtbtor  may  dirtct  it,  412. 
butif  lie  iloes  not,  the  creditor  may,  ib. 
unless    where    debtor   indcbtec!    in 
two  characters,  ihj  one  individu- 
ally, and  the  other  as  represent- 
ing a  third  person,  413. 
orthedebuir  having  ceased   to 
be  a   trader,    woidd   remain 
subji-ct  to  Ijanknipt   Jaws  if 
the  first  (I  bt  remained  un- 
satisfied, 4l4. 
or  the  I'ltcres.bof  third  persons 
aftVcted,  ibid. 
Pleas  of, 

ail  diem,  451, 

payment  of  interest  after  is  an 
answer,  ibid. 
post  diem.  i51. 
i'AYME.VT      OF      MONEY      INTO 
COURT, 
its  eflr.:ct  as  an  adin'ssion,  296. 
is  in  general  ai,  admission  of  the  cause 
of  action  laid,  ibid. 

as  the  making  of  bill  of  exchange 

on  which  action  brought,  ibid, 
so   ill  action  tigainst  a    carrier  ad- 
mils  the  |no.iiis",but  notth'-  fie- 
Icnduiit's  liability  beyond  die  sum 
paid  in,  ibid. 

(Cases   of   Yule  v.    fVillan, 

and  Gi^ay  v  Marsden,  297 ) 

i)0  in  an  actiou  on  pojicy  only  admits 

liability  to  extent  o!   money  p;ud 

in,  ibid, 

admits  only  a  legal  demand,  and 


PAYMENT     OF      MONEY      INTO 

CO  URT — continued. 

does  not  preclude  defendant  fronri 
showing  that  other  part  of  the  de- 
mand is  illegal,  ibid, 
production  of  rule  by  defendant 
does  not  entitle  plaintiff  to  reply, 
8.  297,  ^ 

PEDIGREE, 

may  bf  proved  by  reputatiou,  22. 
but  not  the  place  of  birth,  ibid. 
PEER, 

must  be  swora  when  giving  evidence, 

PERJURY, 

two  witnesses  required  to  prove,  19, 
proof  of  defendant's  oath  to  answer,  86. 
88. 
PEW, 

evidence  in  action  for  disturbance  in. 
489.  ' 

PHYS1CL\N.    See  Confidence. 

when  a  witness,  253. 
PLEADINGS, 

in  general,  as  governing  the  evidence. 
See  Variance. 
PLEAS.     See  General  Issue.    Ml  debet 

&c. 
PLENE  ADMINISTRAVIT.    See  Exe- 
cutor and  ^Jdministrator. 
POLICY.     See  hisnrance, 
POPE'S  LICENSE, 

evidence  ofimpropriation,  135. 
BULL, 

evidence  of  lands  belonging  to 
monastery,  135.  630. 
PORTS, 

survey  of,  evidence,  128. 
POSSESSION, 

when  evidence  of  title  and  e  contra,  44. 
4n6.  568.    See  Seisin, 
POSTEA, 

no  evidence  of  fact  found  by  verdict,  80. 
unless  io  issue  from  Chancery,  81.   ' 
sufficient  proof  o(  tiiai  to  lei  in  evidence 
of  witness  e.xamined,  ibid. 
POST  IIOiiSE  ACT, 

evidence  in  -iciion  on,  44. 
POUND  KEEPER. 

may  justify  iletcntion  on  general  issue  iii 
trespass,  505. 
PRACTICE.     See  mttiess. 

order   of  producing   evidence,  and   of 
counsel's  observations  thereon,  8. 
PRESCRIPTION, 

bow  proved,  28.  506. 
reputation  not  admissible,  28. 

See  casi-s  collected,  Appendix,  No.  1, 
owi.e--  of  inlieritaiice  not   a    witness  on 
question  of  gem  rat  liability    240. 
PRESENTATION    TO  A  LIVING, 

bow  pr')v.-(l,  624. 
PRESUVlPTIor^.     See^n-er.  •    ^ 

Evid'Mce  (o  raisr^, 

lion  av;is  of  party.  See  Admission, 
Of  de-ds  or  other  ii'struments. 
From  lengtU  of  possession. 


INDEX. 


PRESUMPTION— coM^JnueJ. 

grmit  li  (iti,  crown  presuraed, 

46. 
conveyance  of  tithes,  ibid, 
entranchisemeiit  oflaods,  ibid, 
raode  of  eiijoN  ing  •  op)  hold,  ib. 
assi^ment  of  l(  ase  wheiv  only 
lease  itsi-lt  produced,  ibid, 
or  vice  versa,  ibid, 
of  payment.     See  Payment. 
Lost  deeds, 

from  recitals  in  othei-  deeds,  &c. 

See  Deeds. 
from  enrolments,  G2.  165. 
Of  execution  of  deeds, 

att*  r  thirty  years,  162. 
Of  payment, 

from  length  of  time,  48. 
from    other   subsequent   pay- 
ment, ibid, 
from  usual  course  of   paying 
workmen,  410. 
Rebutted, 

by  payment  of  interest, 
How  this  f;ict  proved, 

by  endorseriienl  made 
by  plaintiff  before 
time  of  presump- 
tion, 49 

aliter,  if  after- 
wards, ibid. 
Presumption  rebutted, 

by  parol  evidence  in  case  of  written 

instruments,  185. 
presumption  in  favour  of  next  of 
kin,  185. 

in  favour  of  conusor 
of  fine,  ibid, 
of  revocation  of  will  by  subse- 
quent marriaee,  186.  592. 
PRINCIPAL, 

judgment  against,  evidence  against  ac- 
cessary, 123. 

but  not  conclusive,  ibid. 
PROBATE  OF   WILL.     See  Executor. 
£cclcsiusiical  Court. 
evidence  in  case  of  personal  propertv, 
99. 

aliter  in  will  of  land,  101. 
against  all  persons  for  civil  purposes,  ib. 
aliter  in  criminal  prosecution,  123. 
may  be  shown  to  be  void  for  want  of 
proper  stamp,  558. 
or  bona  notabilia,  ibid. 
PROCLAMATION, 
how  proved,  124. 

evidence  of  general  acts  of  disturbance 
slated  in  it,  ibid. 
PRODUCTION  OF  PAPERS, 

when  a  party  obliged  to  produc.  papers 
lol. 

See  JVotice. 
PROFERT, 

when  made,  the  deed  must  be  produc- 
ed, 439. 
exception  in  case  of  deeds  enrolled, 
165.  439, 


PROMISSORY  NOTE.    See  Bill  of  Ex^ 
change. 

PROTEST, 

evidence  to  prove  presentment  of  fo- 
reign bill,  110. 

Q. 

QUAKERS, 

when  witnesses, 208. 
QUANTUM  MERCIT, 
evidence  of,  385. 

nut  the  usual  but  reasonable  charges  of 
a  particular  business,  386. 
When  it  may  be  entered  into : 

not  where  a  sum  agreed  upon,  ibid. 

unless  ill  cases  of  fraud,  ibid, 
■when  commodities  do  not  answer  repre- 
sentation, or  work  badly  performed, 
qu.  408. 

the  cas's  on  the  subject,  ibid. 
QUARE  IMPEDIT, 
Action  of, 
proof  of  title  by  plaintiff,  62i. 
by  defendant,  625. 
of  avoidance,  ibid, 
how  far  the  proof  must  agree  with  the 
pleading,  ibid, 
evidence  oi   aigmentUion  under  queen 

Anne's  bounty,  626. 
proof  of  dispensation,  ibid, 
finding  of  the  jury,  ibid. 
QUARTER  SESSIONS,  Minutes  of.  See 

Boohs. 
QUEEN  ANNE'S  BOUNTY, 
Augmentation  by, 
how  proved,  626. 
QUO  WARRANTO, 
Judgment  of  ouster, 

when  evidence  against  third  persons, 
123. 

when  corporators  may  be  witnesses, 
247. 

R. 
RECITAL, 

when  evidence  of  deed  recited,  164. 
RECORD, 

How  proved, 

by  e.vemplification,  58.  60. 
examined  copy,  58. 
proof  of,  60. 
ofRce  copy,  ibid. 
Secondary  evidence  admitted : 

on  proof  of  loss  or  destruction,  60. 
pre-um^d  from  length  of  po3sessiijii,45 
The  viliole  to  he  copied,  60. 
Exception  to  this  rule  : 

m.iHer  of  public  concern  relating  to 
different  subjecis,  60. 
When  evidence  received  to  explain  : 
to  show  it  improperly  nbtao!'  d,  50. 
but  not  to  show  it  erroneous,  ibid. 
asamsi  whom  evidence.  St&  Judgment. 
RECOVEllY, 

mav  b'-  pnsumed,  46. 
statute  as  to  proof  of,  ibid. 


r 


INDEX. 


RECTORY, 

GiMiii  of, 

wlirn  presumed,  46. 
REGIS'l'KR      See  Fleet  Books.     Books. 
ot  birtli,  marriage,  &c.  131. 
not   coniiadicied    by   memorandum   of 
clTgyinaii,  1,32 
REGISTER  OF  SHIP, 

no  evidence  against  person  not  making 

it,  24. 
nor  for  person  making  it,  ibid. 
RELEASE  GKNERAL, 

how  tar  open  to  explanation,  168. 
mav  be  piesuraed  after  great  length  of 

time,  47. 
but  not  in  case  of  quit-rent,  ibid. 
RELIGION.     See  WHyiess. 
REMAINDER-MAN, 

may  avail  himself  of  verdict  found  fur 

tenant  for  life,  74. 
or  of  an  actual  entry  made  by  him,  511. 
or  may  enter  for  liim,  il>id. 
cannot  avoid  a   fine  by  ejectment,  but 
must  bring  formedon,  ibid. 
RENEWAL, 

Covenant  for,  in  lease, 

not   to   be  explained   by  parties  acts 
under  similar  covenants   in   other 
leases,  192. 
RENT.    See  Use  and  Occupation. 

action  for  double.     See  Landlord  and 
Tenant. 
REPLEVIN, 

evidence  in  action  of,  501 . 

in  action  for  not  taking  sufficient 
sureties  iu,  615. 
who  liable,  ibid, 
plaintiff's  evidence,  ibid. 

extent  of  defendant's  liability,  610. 
REPLY,  GENERAL, 

parly  making  affirmative  entitled  to,  8. 
rule  to  pay  money  into  court  does  not 
entitle  plaintiff  to  it,  ibid. 
REPUTATION.     See  Hearsay. 

distinction  between  reputation  and  hear- 
say, 27. 
mere  hearsay, /)04i  Utem  motam,  not  ad- 
mitted, 23. 

hearsay  of  a  particular  fact  reject- 
ed, 27. 
admitted  in  cases  of  pedigree,  28. 
of  custom,  28. 
but  not  of  private   prescription  or 
right,  28. 
Set  Cases  col  lected,Appendix,No.l. 
Exception  to  this  vUi, 

when  several  persons  interested, 
493. 
RES  GESTJE,21. 
RES  INTER  ALIOS  ACTA, 
When  eviilence, 
See  JinsiuHr.     Copyholder.     Custom. 
Judgment    Lex  Loci.  Remainder- 
man 
RETURN  OF  WRITS, 

when  evidence  and  to  what  extent,  82. 

4  X      . 


RETURN  OP  WRITS— continued. 

of  rescue  not  traversable  between  par- 

ti<s,  82. 
or  that  sheriff  had  not  sold  at  request 

of  plaintiff,  ibid, 
but  does  not  prove  more  than  directly 

stated,  ibid, 
as  that  plaintiff  had  received  the  mo- 
n'  v  levied  on  fi  fa.  ibid. 
REWARDS, 

On  conviction  of  offenders, 

do'  s  n'>t  disqualify  witnesses,  S25. 
RIOT  ACT.     See  Hundred. 
RIVER, 

the  general  right  of  fishing  in  one  part 
may  be  evidcce  of  the  right  of  fishing 
in  another   291. 
Right  of  fishing: 
navigable,  is  primd  fade  open  to  the 

public,  494. 
not  navigable,  in  the  owners  of  lands 

on  each  side, ibid, 
but  both  these  presumptions  may  be 
rebutted  bv  usage,  ibid. 
ROLLS  OF  COURT  BAHON, 

how  proved,  and  when  evidence,  1S3. 
See  Copyhold.      C^^Dm. 
RULE  OF  COURT, 

proved  by  the  production,  62. 

to  bring  back  venue,  effect  of,  294.  See 

Venue. 
to  pay  money  into  court,  effect  of,  295. 

Si  e  Payment  of  Money  into  Court. 
production    of,  by  detendant,  does  not 
entitle  plaintiff  to  reply,  8. 

S. 
SCIENTER, 

When  necessary  to  be  proved, 
in  action  of  deceit  in  giving  character, 

483. 
aliter,  in  action  on  express  warranty, 

288 
in  actions  for  negligently  keeping  do- 
mestic animals,  486. 
aliter,    in    action    for  keeping  wild 

beasts,  ibid, 
so  for  seducing  or  harbouring  appren- 
tice or  servant,  545. 
aliter,  in  action  for  assaulting  servant 
or  debauching  daughter,  ibid. 
SEALS, 

of  superior  courts  prove  themselves,  57, 

60. 
so  of  foreign  states,  109. 
not  so  of  inferior  or  foreign  courts,  ibid. 
SEDUCTION, 

Of  daiii^hter  or  servant, 
Aciion  for, 

by  parent  or  master,  543, 
evidence  of  service,  544. 
age  of  servant  immaterial,  ibid, 
to  what  extent  the  daughter  a  wit= 
ness,  ibid. 
Evidence  for  defendant, 
lose  conduct  of  girl,  or  improper 
conduct  of  plaintiff,  SiS. 


INDEX. 


SEDVCTlO'N—con/mued. 

Of  liiretl  servant  or  apprentice, 
evidence  in  actioD  for,  545. 
SEISIN, 

possession  or  receipt  of  rent  pnmd  facie 

evidence  of,  568. 
but  not  when  tliere  is  a  subsequent  long 
possession   contrary  to  the  course  of 
descent,  509. 
SENTENCE  OF  FOREIGN  COURTS. 

when  evidence.     See  Foreign  Court. 
SERVANTS.     See  Admissions. 

when  witnesses  for  their  master.     See 

Digest  of  Cases,  240. 
Contract  by, 

when  it  charges  the  master,  38G. 
Injury  by, 
master  not  liable  unless  servant  about 

his  business,  488. 
or  for  wiltul  act  of  servant,  ibid, 
witness  against  master  to  prove  hiin  lia- 
ble for  goods  ordered  by  himself,  241. 
but  not  to   dispute  negligence  im- 
puted to  himself  till  released,  ib. 
witness  in  action  by  master  for  ill  usage 
of  himsel^ibid. 

so   it  setMs   on  information  for  ser- 
vant's mKconducl,  ib.     See  Digest 
of  Cases,  ut  supra. 
SET  OFF, 
Flea  of, 

when  necessary,  41:). 
what  demand  mav  be,  ibid. 
SHERIFF.     See  Jiailijf.   Escape.    Extor- 
tion.    False  Return.     Repfeiin. 
Plaintiff's  evidence  in  action  against, 
for  seizing  wrong  person's  goods,  GOl. 
warrant  to  bailiff,  ibid. 

in  what  cases  proved  without  pro- 
duction, ibid, 
how  far  liable  for  (he  actsof  liisbailiff,ib. 
Defendant's  evidence  : 

fraudulent  assignment    by  third  per- 
son.    See  FruudiiUnt  Assignment. 
action  against,  for  selling  wulioul  paying 

landlord's  rent,  615. 
Plaintiff's  evidence: 
demise.  616. 
levy  by  sheriff,  ibid, 
notice  to  him,  ibid, 
to  what  rent  entitled,  ibid, 
what  execution  within  the  statute,  ib. 
overhauled    by  commission   of  bank- 
rupt, ibid. 
SHIP, 

evidence  of  property  in,  124. 

when  register  is  so,  ibid. 
entries  of  transfer  at  the  custom-house, 
no  evidente  against  a  person  not  hini- 
selt  making  it,  ibid, 
nor  for  person  making  it  without  pos- 
session, ibid. 
in  actions  for  running  down,  488. 
Who  witnesses  : 

master  to  prove  liability  of  owner,  241. 
but  not  to  prove  negligence  imputed 
(.0  himself,  241. 


SLANDER, 

evidence  in  action  for,  46C. 
The  plaintiff  must  prove, 

his  profession  as  averred,  k^l-. 
unless  clearly  implied  by  the  slaade/^ 

itself,  468. 
words  as  laid  in  the  declaration,  469. 
other  words  may  be   proved  to  show 

the  malice,  470. 
special  damage  if  the  gist  of  action,  ib, 
and  that  such  special  damage  was  the 
natural   and  legal   consequence   ot 
the  slander,  471 . 

special  damage  laid  as  aggravation, 
need  not  be  proved  if  words  them- 
selves actionable,  472. 
Publication  of  libel, 
by  sale  in  defendant's  shop,  473. 
or  by  proprietors  of  newspapers,  as 
provided  by  stat.  38  Geo  3,  474. 
the  several  clauses  stated,  ibid, 
construction  thereof,  476. 
libel  in  foreign  language  by  trans- 
lation, 477. 
Defendant  on  general   issue   may  read 
the  whole  libel,  477. 
or  prove  ignorance  of  contei.ts  of  pa- 
per, ibid, 
that  it  is  a  true  report  of  a  legal  pro- 
ceeding, ibid, 
or  copy  of  report  of  a  committee  of 

the  House  of  Commons,  bid. 
or  notification  of  court  martial  or  mi- 
litary court  of  inquiry ,  ibid, 
that  words  -were  spoken  by  defendant 

in  parliament,  478. 
but  this  no  defence  to  the  publication 

of  such  words,  478. 
bona  fide  character  given  to  a  servant, 

477. 
or  opinion  of  a   tradesman's  circum- 
stances, ibid, 
or  confidential  communication  to  per- 
son jointly  interested  with  himself, 
ibid, 
but  this  must  be  a  fair  and  not  a  mali- 
cious representation,  ibid, 
circumstances  of  suspicion  of  plaintiff's 
general  character  ill  mitigation,  478. 
or  that  he  libelled  the  defendant,  ib. 
On  a  plea  ot  justification  : 

the  truth  ol  the  words  or  libel,  ibid. 
SOLICITOR.     See  Attorney. 
SOLVIT  AD  DIEM, 

evidence  on  plea  of,  451. 
STAMP,  Award,  73. 

STAMP  DUTIES.    See  Lease,  (Agree- 
ment for.) 
on  asrreements,  305. 

for  what  purpose   an  agreement  may 

be  read  without  stami*,  306. 
no  parol  evidetice  of  unstamped  a- 
greement  though  destroyed,  145. 
but  party  ordered   lo  produce  it 
at  the  stamp  office,  ibid. 
Exceptions  thereto: 

1.  agreement  for  lease  under  51. 308< 


INDEX, 


STAMP  BUTIES— continued. 

2.  for  hire  ot  labourers,  ibid. 

3.  for  sale  of  goo'Is,  ibid. 

extends  to  all  contracts  relating  to, 

though  by  third  persons,  309. 
but  not  to  things  to  be  made,  ib. 
orgrowingon  land,  ibid. 

4.  for  matter  not  exceeding  2(W.  308. 
several  lots  at  an  auction  amounting 

togf'lher  to  above  20/.  but  indivi- 
dually to  less,  within  the  excep- 
tion, 310. 

5.  letters  passing  by  post,  308. 
what  considered  as  such,  310. 

6.  agreenient  for  insurance  by  certain 
companies,  309. 

7.  between   master   and  mariners  of 
coasting  vessels,  ibid. 

What  is  an  agreement  within  the  acts 
of  parliament : 

paper  signed  by  several, each  agree- 
ing for  himself  with  a  third  per- 
son, is  several  agreements,  310. 
and  requires  several  stamps  to  bind 

several  parties,  310, 
but  one  stamp  sufficient  for  One,  ib. 
so  paper  signed  by  one  person  con- 
taining several  contracts,  ibid, 
but  paper  signed  by  several  for  one 
purpose,  is   but  one  agreement, 
ibid, 
certificate  sigfled  by  auctioneer  of 
party   having    purchased,   is    an 
agreement  by  his  employer,  311. 
but  such  certificate  not  signed  is  not 

an  agreement,  ibid, 
how  far  one  stamp  will  do  for  ano- 
ther of  equal  value,  ibid. 
on  what  terms  stamp  of  another 
denomination   may  be  exchanged 
for  the  right  one,  312. 
What  alteration  makes  a  new  stamp 
necessary: 

not  where   it  is  merely  to  express 
the  original  intention  of  the  par- 
ties, 310. 
aliter  when  a  new  term  added, 

ibid, 
or  an  instrument  is  altered  af- 
ter being   in  complete  ope= 
ration,  ibid. 
On  promissory  notes  and   bills  of  ex- 
change : 

when  and   on  what  terms   a    proper 
stamp  may  be  impressed  in  lieu  of 
another,  333. 
a  bill  or  note  made  since  stat.  37 
Geo.  3,  on  a  stamp  of  greater 
value  though  of  <lifF'rent  deno- 
mination from  that  required, 
is  good ,  334. 
On  probate  and  Utters  of  administration: 
canriot  be  question. 'd  on  general  issue 
to  action  by  executor,  557. 

aliler  where  by  form  of  pleading 
plaintiff  must  produce  them, 
558. 


STAMP  fiUTIES— coM^mwerf. 
On  awards: 
not  required  to  the  appointment  of  an 
umpire,  120. 
STATUTES, 

distinction  between  public  and  private, 
54. 

how  proved,  ibid. 
Actions  on, 

1.  penal,  454. 
Plaintiff's  evidence : 

plaintiff  must  prove  the  act  con- 
stituting the  offence,  455. 

must  show  writ  sued  out  in  time, 
456. 

but  common  writ  sufRcienf,  ibid. 
When  declaration  not  filed  within  a 

year : 

writ  must  be  returned,  ibid, 
so  \i  alias  served,  ibid. 
Defendant's  evidence : 

that  he    is   within  exception  or 
qualification,  455. 

reasonable  colour  of  right,  456. 

but  not  merely  pretended,  ibid. 

qualification  by  estate,  ibid. 

former  conviction,  ibid. 

2.  remedial,  457. 

for  double  rent  and  yearly  value. 

See  Landlord  and  Tenant. 
against  the  hundred,  on  statute  hue 
and  cry,  riot,  &c.  See  Hundred, 
STATUTE  MER   HANT, 

evidence  in  ejectment  on,  535. 
STOCK, 

evidence  in  action  on  sale  of.    See  Ven- 
dor and  Vendee. 
Evidence  in  action  on  loan  of, 

plaintiff's  possession  of  stock,  385. 
sale  at  request  of  defendant,  ibid, 
loss  by  omission  to  replace,  ibid, 
how  estimated,  ibid. 
SUBPCENA  DUCES  TECUM.  Sue  Deed 

and  JVotice  to  Produce. 
SUBSCRIBING  WITNESS, 

when  hisattendancedispensed  with,  147. 

See  Deed. 
not  necessary  to  validity  of  deed,  ibid. 
evidence  when  he  denies  his  hand-writ" 

ing,  148. 
in  general  must  be  called,  145. 
if  dead,  absent  in  foreign  country,  or  in- 
sane ,  his  hand-writing  must  be  proved, 
152. 
so  if  become  incompetent  by  reason  of 

crime  or  int.M-est,  153. 
if  a  fictitious  name  put  as  a  subscribing 
witness,  or  he,  on  being  called,  deny 
having  seen  the  deed  signed,  the  hand- 
writing of  the  pai  ty  luav  be  proved  by 
another  pel  son,  147. 
so  if  witness  was  interested  at  the  time 
of  attestiition,  ibid. 

if  more  witnesses  than  one,  dea'h 
or  -ibsence,  kc  of  all  should  be 
proved  before  '{\<s  iecoudary  evi" 
Jeiiccis  admitted,  134. 


INDEX. 


SUGGESTION   OF  BREACHES.     See 

namaffes 
SURETY.     See  Guarantee. 
Evidence  in  action  by, 

for  indemnity  against  his  principal, 390 

for  contribution  from  co-surf  ty,  lijid. 

when  sevt-i'al   surttits   ina\  join,  and 

wlieuthey  mustsut  separately,  392. 

Evidence  in  aciion  Kgamst, 

si^e  Goss  V.  Wutlingion,  Addenda, 
SURRENDER  OF  TKRM, 

whe.i  presumed,  523. 
SURVRY,  Public.     See  Doomsday.  Ingui- 
sition.     Ports.     Tenier. 
evidence  to  prove  private  rights,  128, 
though  cummission  lost,  129. 

T. 
TENANT.    See  Landlord  and  Tenant. 
cannot  be  a  witness  to  support  his  land- 
lord's title,  2:32 
TENANT  IN  COMNiON, 

evidence   in  action  by ,  tor  double  rent, 
457. 

of  trover,  495. 
of  ejectment   519. 
fine  levied  bj,  before  ouster, no  bar,  512. 
what  is  evidence  of  ouster,  516.  519. 
TENDER, 
Plea  of, 

^g  an  admission  of  the  plaintiff's  right 
of  aciion,  and  prevenistli'  necessity 
of  proof,  29r.  428 
not  pleadable  after  diy  of  payment  of 
bill  of  exchange,  433. 
Evidence  on  plea  of, 

what  offer  of  money  amounts  to,  431. 
to  plaintiff's  Httorney  or  his  agent,432 
of  ba-ik-notes,  432. 
counti'y  ditto,  ib. 
Special  replication: 
Suts'  quetit  demand, 
by  attorney's  clerk  not  sufficient, 

433. 
writ  sued  out  before  bill  filed,  ib. 
TERM.    See  Surrender. 
TERRIER, 

when  evidence,  133. 
to  be  kept  in  the  bishop's  register,  ibid, 
or  church  chest,  ibid, 
coming  from  other  custody  not  evidence 
against  parson,  ibiil. 

aliler  against  public  body  who  had 
possession  (if  it,  ibid. 
should  be  sigi  ed  by  churchwardens,  ib. 
Chief  Bai  on  Richard's  observations  on 
its  effect,  630 
TITHES,    Sue  Endowment.  Impropriation. 
Modus. 
evidence  in  action  on  composition  for,627 

fdr  not  sei'ing  out,  ibid, 
■what  notice  U'  cessary  to  discharge  com- 
position, 628. 
Proof  of  plaintiff's  title: 
when  [)nsse!:sion  ofrecforyjOr  receljit 

of  litiies,  sufficient,  627. 
when  proof  required  of  title,  G28, 


TITHES— co7Uinued. 

in  the  case  of  lay  impropriator,  629. 

when  grant  or  conveyance  presumed, 
46   629. 
Evidence  of  discharge  from, 

by  moilus.     See  JIodu3. 

the  pope's  bull,  135.  630. 

prescription,  630. 

real  composition,  631. 

oitler,  ibid. 

unity  of  possession,  ibid. 

barrenness  of  th  '  l«nd,  632. 
In  what  cases  the  custom  of  tithing  in  A. 

will  be  evidence  oMike custom  iaB. 291 
TITLE, 

Admission  of, 

whal  aranuiits  to,  45. 
in  what   cases  former  vendor  a  witness 

to  prove,  245. 
TREASON, 

two  witnesses  required  in  cases  of  high 

treason,  20 
so  of  petty  treason,  ibid, 
but  in   cases   respecting   the  coin,  one 

witness  is  sufficient,  ibid, 
so  in  cases  of  direct  attempt  against  the 

king's  person  or  lile,  ibid. 
TRESPASS.     See  A'of  Gui/ty. 
Proof  of  trespass , 

meddling  by  defendant,  501. 

or  ab'.tting  others  though  he  does  not 
personally  assist,  ibid. 

day  not  material,  ibid. 

but  plaintiff  in  some  cases  confined  to 
one,  502 
^liti  enormia  : 

what  facts  evidence  under  if,  505. 
TROVER, 

Evidence  in  action  of: 
Plaintiff  rausi  prove, 

1.  Property: 

either  special,  coupled,  with  actual 

possession,  495. 
or  general,  and  right  to  immediate 

possession,  ibid, 
cannot   maintain   action    if  he    has 
baihrl  to  another  who  has  an  in- 
terest, 496. 

aliter    if  such   person    has  no 
permanent  interest,  ibid, 
as  in  case  of  letting  to  mar- 
ried woman.  497. 
mere  possession   sufficient  title  a- 
gainst  a  stranger,  ibid. 

2.  ConveiS'oh  : 
actual,  what  is,  ibid. 

implied  after  refusal  by  defendant, 

when,  ibid. 

not  on  refusal  of  mere  servant,  ib. 

or  if  defendant  has  a  lien,  499. 

but  lien  cannot  be  set  up  by  per- 
son who  has  claimed  as  his 
own,  ibid. 

not  if  lost  by  carrier,  ibid. 
3.  Against  whom  it  lies: 

not  by  one  tenant  in  common 
against  another,  499. 


INDEX. 


TROVER— continued. 

unkss  he   actually   destroyed 

the  goods,  ibid. 

4.  B)  wliom  : 

on   general  issue   one   tenant  in 

common  may  reuover  ;i  moiety 

of  value  against  third  pcrsoUjib. 

V. 
VARIANCE, 

1,  In  circumstances,  284. 

affects  the  action  unless  the  averment 
wholls  impertinent,  ibid, 
of  which  nature  is  the  statement  of  a 
scienter  in  an  action  on  an  express 
■warranty,  288. 
but  if  merely  immaterial,  it  is  fatal, 284. 
as  the  mis-stating  the  days  of  paying  rent 
in  an  action  against  the  sheriff  for  re- 
moving   goods    without    paying   the 
landlord,  288. 
records  must  in  general  be  truly  stated, 
289. 

but  the  substance  is  sufficient,  ibid, 
contracts  must  be  truly  stated,  290. 
30  must  customs  or  prescriptions,  291. 
therefore  the  custom  of  tithing  in  one 
parish  is  no  evidence  on  plea  of  cus- 
tom in  that  adjoining,  ibid. 
aliter  if  it  were  pleaded  as  the  cus- 
tom of  a  district  including  both 
parishes,  ibid, 
so  the  custom  of  one  manor  in  general 
no  evidence  of  the  custom  of  that 
adjoining,  ibid. 
aliter  in  the   case  of  a  general 
usage    governing    all    manors 
within  a  certain  district,  ibid. 
SO  the  general  mode  of  fishing  on  a 
particular  river  is  proof  of  the  right 
in  a  particular  part,  ibid, 
so  the  exercise  of  right  on  distant  parts 

of  one  large  waste,  ibid, 
or  cutting  down  timber  on    different 

parts  of  one  large  plantation,  ibid. 
or  the  conduct  of  several  persons,  as- 
sembled on  one  common  purpose, 
on  a  justification  for  arresting  plain- 
tiff, ibid, 
when  a  videlicet  will  prevent  the  ne- 
cessity of  a  strict  statement,  290. 

2.  Variance  in  place  : 

distinction  between  local  and  transitory- 
actions,  292. 

county  immaterial  in  the  latter,  ib. 
place  within  it  immaterial  in  both, 
unless  necessary  part  of  descrip- 
tion, ibid, 
instances.  292,  293.    See  Venue. 
VENDOR  OP  LANDS, 

Evidence  in  action  by. 
Plaintiff's  evidence  : 

contract  must   be  in  writing,  312^ 
and  see  Frauds,  (Statute  of,) 
proof  of  it  by  subscribing  wit- 
ness or  otherwise.     See 
Deed. 


VENDOR  OF  LANDS— c&7iteraMe<i. 
Other  evidence: 

abstiact  of  title,  374. 
tender  of  conveyance,  ibid, 
general  observations  as  to  what  each 

parly  must  du,  379. 
production  of  title  deeds,  374. 
proof  of  title,  377. 
Defendant's  evidence  : 
defect  of  title,  ibid, 
of  one  of  two  lots  sold  at  the  same 

ibid, 
equitable  objection,  ibid, 
fraud  of  pUintiff, 

emplo*  ment  of  puffers,  378. 
VENDOR  OF  GOODS, 

evidence  in   action  by.     See  the  above, 
and  title  Frauds,  (Statute  of.) 

delivery  or  tender  of  goods,  375. 
readiness  of  plaintiff  to  deliver 
them  when  defendant  was  to 
fetch  them,  376. 
fall  in  the  value  o  goods,  .379. 
VENDEE  OF  LANDS  OR  GOODS, 
evidence  in  action  by.     S'-e  the  above, 
readiness   to  accept  and  pay  pur- 
chase money,  378. 
necessity  of  r  adin  ss  not  waved  hy 
delivery  of  part  without  payment, 
380. 
Tender  of  conveyance : 

not  necessary  if  seller  refuses 
to  deliver  abstract,  or  deli- 
vers one  showing  no  title. 
378. 
rise  in  value  of  goods,  379. 
When  he  may  rescind  contract : 

not  when  he  has  t»ken  possession, 
or  ma<le  alieralioiis,  378. 
VENDOR  OF  STOCK, 
Evidence  in  action  by, 

plaintiff's  ;)0ssessiun  of  stock,  384. 
attt  ndance  to  transfer,  ibid, 
subsequent  sale,  ibid, 
difference  of  pi'ice,  ibid, 
VENDEE  OF  STOCK, 
Evidence  in  action  by, 

defenfi;<nt's  possession,  385. 
plaintiff's  offer  to  r.ceive,  ibid, 
subsequent  purchase,  ibid, 
difference  of  price,  ibid, 
VENUE, 

place  laid  merely  as  such  not  material, 
293. 

Undertaking  to  give  material  evi- 
dence : 

what  a  compliance  with,  ibid, 
any  one  maierial  piece  of  evi- 
dence, ibid. 
deed   enrolled   in   Middlesex, 

294. 
commission  of  bankruptcy  test- 
ed there,  ibid, 
rule    for   paying  money    into 
court,  i'lid. 

or    that   cause   of   action 
arose  abroad,  or  in  two 


INDEX. 


VENUE— coftfonwef/. 

different   counties,  sed 
quxre,  294. 

but  not  a  demand  sub- 
sequent te  a  plea  of 
tender,  ibid. 
or  that  the  witnesses  re- 
side in  the  count\,  295. 
VERDICT.    See  Jtidgmtnt.    Postea. 

in  general  not  evidence  till  judgment  en- 
tered, 80. 
Exceptions  to  this  rule: 

issuf  from  Chancery,  81. 
to  show  the  fact  of  trial,  ibid. 
VOIR  DIRE, 

examination  of  witness  on,  261. 

U. 
UNDER-SHERIFF, 

His  adrais£ii)hs  tvidence  against  his  prin- 
cipal only  when  part  ot  tlie  res gesta, 
39. 
When  personally  liiible : 

for  extori;(jn,  if  actually  taken  by 

himself,  CO", 
for  not  taking  sufficient  sureties  in 
replevin,  615. 
USAGE,  Ancient,  Deed,  192. 

of  trade,  IS4. 
USE  AND  OCCUPATION, 
evidence  in  action  for,  394. 
defendant's  occupation,  396. 

undiT  plaintiff's  permission,  ibid, 
proved  by  payment  of  rerit,  ibid, 
though  under  distress,  ibid, 
value  of  premises,  ibid, 
or  an  agreement  for  lease,  395. 
a  stranger  cannot  maintain  it,  396. 
but  grantee  of  reversion  may, 
397. 
if  agreement  in  writing,  it  must  be 

produced,  398. 
seller  who  cannot  make  a  s:ood  title 
cannot  maintam  it  agamst  purcha- 
ser who  has  not  a  beneficial  occu- 
pation, 396. 
occupation-  by   ui)j^r-tenant  is  an 

occupation  by  lessee,  395. 
assignee   not  liable  for  antecedent 

possession  of  lessee,  ibid, 
when  bankrupt  continues  liable,  ib. 
tenant  cannot  dispute  his  landlord's 

original  title,  45.  .599. 
or  detent  his  aciion  by  showing  that 
he  had  demised  to  aixHlier,  399. 
but  may  show  title  expired,  ibid, 
or  subsequent  mortgage,  ibid, 
or  delivery  up  of  possession,  ibid. 
USURY. 

W. 
WARRANT,  (Sheriff's) 
proof  of,  601. 

in  what  cases  secondary  evidence 
admitted,  ibid. 
WARRANTY, 

Evidence  in  action  on  :  • 


WARRANTY— conto>»<e  J. 

reprts-!it;ition  at  the  time  of  thing 

sold,  380. 
scienter  not  necessary  when  posi- 
tive assurauct,  nor  need  be  prov- 
ed though  stated,  38^. 

alitcr  where  thing  necessarily 
out  of  knowledge  of  party, 
ibid. 

as  the  &ge  of  a  horse  sold 

by  pedigree,  ibid. 
or  the  genuineness  of  very 
ancient  picture,  itud. 
in  what  cases  a  frau-lultnt  conceal- 
ment, without  positive  promise, 
■wdl  give,  causi-  of  action,  383. 
noticL-  of  unsoundness  onlj  necessa- 
ry  to    recover    subsequent    ex- 
penses, ibid, 
offer  01  purchaser  to  sell  to  another 

person  in<  bar  to  t.ciii.n,  ibid, 
when   contr;ict  la.  y   I,-  reiciiided, 
and    monej     iia<l    and    received 
mainiHined,  ibid. 

if  til?   buyr  had  liberty  to 

return  the  article  in  case 

he  disliked,  ibid. 

,  but  not  if  contraci  still 

continue:.':  open,  ib. 

in  what  cases  a  former  visndor  is  a 

witness  to  prove  soundness,  245. 

WASTE, 

evidence  of  property  in,  26.     See  Libe- 
rum  TfTiemenlum.     Variance. 
WATERCOURSE,     See  Ifay. 

evidence  in  action  lor  dut  iiing,  490. 
what  use   of  water  gives  the  right, 
ibid. 
WAY, 

Public : 

right  of,  proved  by  reputation,  26. 
verdict  between  other  parties. 

75. 
.  usage,  489. 
Private  : 

evidence  in  action  for  disturbance 

ot,  4S9 
twenty  jears  enjoyment   evidence 
of  right,  ibid, 
musi  not  be  claimed  to  greater 

extent  than  provetl,  493. 
obstruction  or  leave  asked,  evi- 
dence to  rebut,  ibid. 
WIFE.-   See  Husband  and  IVife. 

her  liability.     See  Coverture. 
Admissions    or    representations    by, 
when  evidence  against  her  husband, 
only  receivable  as  part  of  res 
gesta,  39. 
What  considered  such : 

representations  at  time  of  elope- 
ment, 36. 
state  of  her  health,  40. 
What  not : 

by-gone  transaction,  36. 
acknowledgment  ot  receipt  of 
money  earned  by  her,  ibid. 


INDEX, 


WIFE— conti7i7ied. 

or  due  to  her  as  executrix,  36. 
Contract  by  : 

in  general  binding  on  husband  if 

living  with  hint,  388. 
not  so  it  hf  has  given  her  money 

to  pay,  il)i(l. 
if  parted  from  hira,  not  binding 
unless  for  necessaries,  389. 
not  then  ifslie  has  commit- 
ted adultery,  ibid. 
Promise  by : 
/  does  not  revive  debt  due  dum  so- 

la,  3G. 
To  what  fact  a  witness  : 

cannot  prove  non-access  of  hus- 
band, 257. 

but  may    that  another  was 
connected  with  her,  ibid. 
Action  for  harbouring : 
when  it  lies,  543. 

wife's  representations,  when 
evidence,  ibid. 
WILL, 

Of  personalty,  how  proved  : 

by  production  of  probate,  99. 
probate  conclusive,  ibid. 

unless  there  has  been  bona  no- 
tabiliu,  100. 
competence  of  testator,  583.     See 
Insanitu. 
Of  land: 

provision  of  statute  of  frauds,  573. 
does  not  extend  to  copyholds, 

573. 
nor  mere  chattel  interest,  ibid, 
evidence  of  will,  ibid. 

1.  signing  by  testator,  574. 

2.  publication,  575. 

3.  attestation  by  witnesses,  ib. 

needs  not  be  at  the  same 

time,  or  in  the  presence 

of  each  other,  ibid. 

but  must  be  in  presence  of 

testator,  ibid. 

what  is  considered  to  be,  5  80 

must  all   attest  the  same 

instrument,  577. 
codicil  not  considered  as 
pnrt  of  will  for  this  pur- 
pose, 578. 

but   several    writings 
made  on  same  pa- 
per may,  ibid. 
the    whole    will 
must   be    pre- 
sent, 579. 

4.  witnesses  credible : 

who  considered  so,  580. 

cases  and  statute  on  that 
subject,  234,  235. 
What  proof  niquu-ed  : 

sufficient  to  call  one  wit- 
ness, 582. 

if  he  denies  execution,  all 
should  be  called  and 
tbeu  coDtradicti-d,  ibid. 


WILL— confmuerf. 

Ijeir  may  prove  their  dy- 
ing declarations  as  to 
forgery,  255. 

when  execution  pre- 
sumed, 582. 
Revocation  of: 

Provisions  of   the    statute    of 
frauds : 

1 .  by  makinga  new  will,SSg 

2.  by  writing,  not  itself  a 
will,  ibid. 

3.  by  cancelling  or  oblite- 
rating, ibid. 

4.  by  marriage  and  birth 
of  a  child,  592. 

qutere  whether  parol 
evidence  admissible 
to  rebut  intention, 
186.592. 

5.  by  taking  a  new  estate, 
593. 

Uepublication  of: 

when  it  passes  newly  acquired 

property,  ibid, 
or  restores  an  old  will,  595. 
Will  of  copy  holds: 

not  within   statute  of  frauds, 

573.  640. 
what  a  sufficient  will,  640. 
WITNESS, 

(A.)  Who  may  be  (in  general,) 

ch  ildre  n  w  ho  have  sense  of  religion , 

195. 
lunatic  during  lucid  interval,  ibid, 
deaf  and  dumbpeisnns,  if  otherwise 
of  sense  and  understanding,  196. 
persons  convicted   of  offences  not 

rendering  them  infamous,  ibid, 
persons  convicted  of  infamous  of- 
fences, but  afterwards  pardoned, 
200. 
what  offences  are  considered 
as  rendering  them  infamous, 
199. 
what  evidence  required  of  par- 
don, 200. 

of  actual,  ibid, 
burning  in  hand,  201. 
whipping,  fine,  or  tratis^ 

jjortation,  ibid, 
not  necessary    in  case  of 
clergymen  or  peers,  200. 
nor  wdl  transportation  re- 
store after  sentence  of 
death,  201 
excommunicated  persons,  205. 
infidels,  who  are  not  atheists,  ibid. 
Quakers  in  civil  cases,  200. 
but  not  in  criminal,  ibid. 

what  considered  as  a  cri- 
minal prosecution,  ibid, 
accomplices  or  joint  trespassers  not 

joined.  204.  216. 
defendant  against  whom  no  evidence 
given,  or  who  has  suffered  judg- 
ment by  default^  225. 


INDEX. 


WITNESS— on^miied. 

ptisoii  who  lias  sworn  otherwise  on 

Ibrrntr  occasion,  205. 
person  who  hasbf*  n  in  t'aci  married 
to  prove  his  niarriage  void,  256. 
(B.)  Who  may  not  be  (in  general,) 
atheists,  '206. 
idiots  and  lunatics,  195. 
childrt-n  without  sense  of  religion, 

ibid, 
persons  convicted   of  infamous  of- 
fences, 197. 

what   offences    deemed    infa- 
mous, 199. 

how  conviction  to  be  prov- 
ed,201.    p'ideante,{\.) 
(C.)  When  husband  and  wife  may  or 
may  not  be  witni  sses: 
in    general    not    witnesses  for    or 

against  each  other,  247. 
Dor  woman  who  has  passed  as  wife 
witness  tor  husband,  vide  Cainfj- 
bell  V.  Tweniloiv,  Addenda, 
though  afier  il  vorce,  249. 
or  for  third  persons  jointiv  indicted, 

ibid, 
nor  to  give  evidence  tending  to  cri- 

rohiate,  ibid, 
but  wife  niay  incidentally  show  that 
her  husband  is  liable  for  the  debt 
in  action  against  third  person,  ib. 
Exception  to  the  rule  : 

where  one  has  offered  personal 

violence  to  the  other,  248. 
or  where  marriage  not  binding, 
as  in  the  case  of  second  wife 
on  indictment  for  bigamy,  ib. 
or  wife  carried  away,  on  in- 
dictment for  forcible  abduc- 
tion, ibid, 
or  wife  divorced  to  prove  facts 
occurring  after  divorce,  ibid. 
When  witnesses  on  questions  of  le- 
gitimacy of  the  children  : 
may  be  witnesses  to  deny  mar- 
riage, or  prove  its  illegality, 
256. 
particeps  criminis,  204. 
qui  tam,  14S. 

so  wife  to  prove  illicit  connec- 
tion, 256. 
but  not  non-access  of  husband, 
ibid. 
What  persons  may  or  may  not  be 
witnesses  on  the  ground  of  protes- 
sional  confidence  : 

barrister,  attorney,  or  inter- 
preter employed  between 
them  and  the  client,  not  to 
reveal  confidential  communi- 
cations, 250. 
What  confidence  considered 
professiorial : 
not  acts  to  which  attorney 

is  a  party,  251. 
nor  act  done  by  client  in 
his  presence,  ibid. 


WITNESS— coH^inuerf. 

nor    where  attorney  acts 
merely   as   steward    or 
agent,  ibid, 
nor   what  client  tells  the 
attorney,  after  the  cause 
end.-d,  253 
a  physician  consulted  by  a  pa- 
tient  not  bound  to  secrecy, 
ibid, 
nor    clergyman   to   whom    he 
makes  confession  of  his  sins, 
ibid. 
(D.)  What  persons  are  or  are  not  ex- 
cluded on  account  of  interest : 
General  rule, 

the  interest  must  be  either  a  cer- 
tain benefit  or  injury  by  the 
event  of  the  cause;  or  the  ques- 
tion such  that  the  record  would 
Tbe  evidence  for  or  against  the 
witness  in  another  action, 
210. 
mere  hope  or  expectation  of  be- 
nefit no  objection,  ibid. 

a  joint  trespasser  is  a  witness 
for  the  plaintiff,  204.  216. 
a   person  guilty  of  like  of- 
fence  for  the  defendant, 
210. 
the  wife  of  a  person  convict- 
ed is  a  witness  for  the  pro- 
secutor, 216. 
1.  in  general,  party  in  the  cause 
no  witness  for  himself,  219. 

unless  by  consent,  ibid. 

nor  the  partner  till  released 

by  him  to  prove  that  the 

witness  only  is  liable,  228. 

nor  informer  who  has  part 

of  penalty,  224. 

aliter    in  cases  of   re- 
wards lor  apprehend- 
ing felons,  224. 
but  when  governors  of  a  cha- 
rity are  defendants  in  cor- 
porate character,  the  indi- 
viduals mav  be  witnesses, 
219. 
or  other  corporators  not  be- 
neficrall}   interested,  ibid. 
See  Digest,  Letter  (C.) 
party    robbed  a  witness  for 
himself  on  the  statute  of 
Winton,  221. 

and  hundredors  for  de- 
fendant, 223. 
defendant's  deposition    evi- 
dence for  him  when  after- 
wards sued  for  malicious 
prosecution,  ibid, 
persons     made    defendants 
without  cause  and  against 
whom  no  evidence  given, 
witness-  s,  for  other  defea- 
da-ts,  224.,  225. 
SO  defendant  who  has  sufier- 


INDEX. 


WITSESS— continued. 

eil  judgment   by  default, 
225. 
but  not  for  plaintiff  to  charge 
the    other    in    assiimpsity 
22fi. 

2.  a  mere  formal  title,  without  ac- 
tual interest,  forms  no  objec- 
tion, 229. 

as  guardian  in  socage,  ibid, 
trustee,  ibid. 
aliter  of  guardian  on  re- 
cord who  is  liable  for 
costs,  ibid, 
tenant  at    will    to    support 
landlord's  title,  ibid, 
or  defeat  ejectment,  232 
aliter  if  tenant  from 
year  to  year,  ibid. 

3.  a  mere  imaginary  interest  or 
supposed  honorary  obligation 
no  objection,  ibid. 

4.  witnesses  of  necessity,  admit- 
ted though  really  interested, 
264. 

as  factors,  servants,  porters, 
&c.  223.  240.  241. 

but  not  servants  to  show 
the  propriety  of  their 
own  conduct  in  action 
charging    th»>m    with 
negligence,  241. 
corporators  in   whom  alone 
resides  the  right  of  mak- 
ing freemen,  239. 
persons  giving  bribes  at  elec- 
tions, 247. 

5.  Persons  indifferent  as  having 
interests  both  ways : 

inhabitants  of  county  on  in- 
dictment for  not  repairing 
bridge,  227. 

such  inhabitants  now  made 
witnesses  in  all  cases,  237. 

party   to    a    bill    in    action 
against  another    party  to 
prove  it  void  or  paid,  228. 
240. 
but  not  to  prove  proper- 
ty in  himself,  ibid. 

person  who  has  borrowed 
money  for  another  to  show 
his  authority,  ibid. 

master  of  ship  who  has  or- 
dered provisions  to  show 
liability  of  owner,  ibid. 

how  far  the  court  will  weigh 
the  conflicting  interests,see 
the  cases,  238. 

6.  In  cases  of  criminal  prosecu- 
tions : 

in  general,  party  defrauded 
may  be  a  witness  on  cri- 
minal prosecution,  216. 

exception  in  the  case  of  in- 
dictment for  forgery,  218. 
does  not^  extend  to  ar° 

4  Y 


WlTi<iESS— continued. 

tions   in    which   that 
question  arises,  218. 
digest  of  cases  on 
this  subject,  244. 

7.  the  witness  cannot  disqualify 
himself  by  making  himself  in- 
terested without  the  act  of  the 
party,  as  by  laying  wager  on 
event  of  cause,  232. 

or  becoming  bail,  260. 

8.  in  all  cases  of  interest  the  wit- 
ness  may  be  rendered  compe- 
tent by  a  release  to  or  from 
him,  or  a  tender  of  it,  233. 

9.  persons  may  be  examined 
where  the  evidence  is  against 
their  own  interest,  234. 

and  compelled  to  answer 
though  they  charge  them- 
selves with  a  debt,  259. 

but  not  to  charge  themselves 
with  a  crime  or  disgrace- 
ful action,  as  being  father 
of  bastard  child,  or  author 
of  libel,  ibid. 
Digest  of  cases  as  to  interested 
witnesses  : 

corporators  and  others  on 
public  questions,  238. 

servants  and  agents,  240. 

in  cases  of  bankruptcy  and 
insolvency,  242. 

on  indictments  for  forgery, 
244. 

persons  answerable  over  or 
who  have  themselves  con- 
tracted, 245. 

persons    themselves     liable 
charging  others,  or  coming 
to  claim  property  in  them- 
selves, 244. 
(E.)  What  number  necessary  : 

one  in  general  sufficient,  17. 

so  in  high  treason  where 
overt  act  charged  is  a  di- 
rect attempt  on  the  life  of 
the  king,  21. 

or  forcounterfeitingcoin,  sig- 
net, privy  seal,  great  seal, 
or  sign  manual,  ibid. 
Two  required, 

in  other  cases  of  high  trea= 
son,  20. 

petit  treason,  ibid, 

perjury,  ibid. 
(F.)  How  examined : 
1,  on  oath,  21. 

what  act  of  party  will  dis- 
pense with  this,  21.  220. 

in  what  form  the  oath  to  be 
administered,  219. 

what  questions  to  be  asked  a 
witness  respecting  the  form 
of  swearing,  207. 
8.  Mode  of  examination : 

on  the  voir  dire.  261 , 


INDEX. 


WITNESS— conrmKcd. 

ma)  prove  instruments  dis- 
qualifying  him,  or   re- 
stoiing  his  competency, 
261. 
when  examined  apart,  270. 
Original  examinution : 

not  lo  be  asked  leading  ques. 

tions,  269. 
exception  lo  this  rule,  ibid, 
how  li''  may  assist  his  memo- 
ry  by  reUi  ring  lo  written 
papers,  278. 
when  he  may  be  examined 
as  to  matters  ot  opinion, 
ibid. 
Cross-examination : 

may  be  a-ked  leading  ques- 
tions, 269. 
but  not  as  to  written  docu- 
ments, ibid. 
or  as  to  criminal  or  disgrace- 
ful coiiducl  not  connected 
with  the  cause,  202. 

modern     cases    on    this 

subject,  ibid. 
how  lar  stitject  to  con- 
tradiction un  this  puitit, 
ibid, 
necessary  in   all  cases  to  lay 
foundation    for   contradic- 
tion, 275. 
how  far  as  to  cons))iracy  to 
defeat  justice,  19. 
Re-exa:^iiiiaiion  of, 

not  to  be  leading,  277. 
not  to  be  asked  what  said  by 
third  person,  to  whom  wit- 
ness on  cross-i-xaniination 
staled  he  told  certain 
things,  278. 
Discrediting  of, 


VVITN  ESS— co?itinued. 

how  tar  on  their  own  exami- 
nation    See  Cross-exami- 
nation, supra. 
general  evidence  to  discre- 
dit, 197. 
cannot   be  genentlly  discre- 
dited by  part)  calling,   ib. 
but  he  may  contradict  them 

as  tn  tacts,  ibid, 
how  tar  proof  of  eonspiracy 
amongst  the  witnesses  evi- 
dence   for    this    purpose, 
19 
(G.)  Compelling  their  attendance  and 
their  priviligts  : 
subpoena,  280. 
habeas  corpus,  201. 
remedy  (it  expenses,  280. 
protection  from  arresi,  281. 
from      answering     questions 
criminating   or  riisjiracing 
themselves,  202    256. 
but  not  from  answering  such 
questions  as    only    render 
them  liable  to  civil  suit  or 
pecuniary  loss,  256. 
WORDS.     See  Slander. 
WORK   AND  LABOUR, 

whei-i   the  want  of  skill  or  attention  fur- 
nishes a  detence  to  the  action,  402. 
WRITS.     See  Return. 
how  proved.  82. 
win  n  considered  as  the  commencement 

of  the  action  or  oilurwise,  54. 
day  of  issuing,  how  pnjved,  ibid, 
when    necessary  to  show    continuance, 

456. 
how  continuance  proved,  ibid. 
WRITTEN  EVIDENCE, 

when  explainable  by  parol.   See  Ambi- 
guiiu. 


REPORTS 


REFERRED  TO  IN  THE  NOTES  TO  THIS  EDITION 


Maine. 
Greenleaf's  Reports,  1  vol. 

New  Hampshire. 
Adams'  Reports,  2  vols. 

Vermont. 
Tyler's  Reports,  2  vols. 
Massachusetts. 
Massachusetts  Reports,  17  vols. 

Connecticut. 

Kirby's  Reports,  1  vol. 
Root's  Reports,  4  do. 
Day's  Reports,  4  do, 
Connecticut  Reports,  3  do. 

New  York. 

Johnson's  Reports,  20  vols. 

Do.         Cases,  3  do. 

Do.         Chancery  Reports,  6  do. 
Caines'  Reports,  3  do. 
New  York  Cases  in  Error,  2  do. 
Coleman  and  Caines' Cases,  1  do. 
Cowen's  Reports,  1  do. 
Anthon's  Nisi  Prius  Cases. 

New  Jersey. 

Pennington's  Reports,  1  do. 
Southard's  Reports,  2  do. 


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Dallas's  Reports,  4  vols. 
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Maryland. 
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3  do. 

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1  do. 

Virginia. 
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4  vol. 

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Washington's  Reports,  2  do. 
Call's  Reports,  4  do. 
Gilmer's  Reports,  1  do. 
Randolph's  Reports,  1  do. 

North  Carolina. 

Cameron  and  Norwood's  Reports, 
1  vol. 

Haywood's  Reports,  2  do. 

Taylor's  Reports,  1  do. 

Murphy's  Reports,  1  do. 

Reports  in  the  Court  of  Confer- 
ence, 1  do. 


REPORTS  REFERRED  TO. 


Carolina  Law  Repository,  4  do. 
Taylor's  Term  Reports,  1  do. 
Hawk's  Reports,  2  do. 
Ruffin's  Reports,  1  do. 

South  Carolina. 

Bay's  Reports,  2  vols. 
Bee's  Reports,  1  do. 
Desaussure's  Reports,  4  do. 
Nott  and  M 'Cord's  Reports,  2  do. 
M  'Cord's  Reports,  2  do. 
Reports    in    the    Constitutional 
Court,  2  vols. 

Kentucky. 

Bibb's  Reports,  4  vols. 
Marshall's  Reports,  3  do. 
Hardin's  Reports,  1  do. 
Littell's  Reports,  3  do. 

Tennessee. 

Overton's  Reports,  2  do. 


Cooke's  Reports,  1  do. 
Heywood's  Reports,  3  do. 

Louisiana. 
Martin's  Term  Reports,  1  do. 


Gallison's  Reports  in  the  Circuit 

Court  of  the  United  States — 1st 

circuit,  2  vols. 
Mason's  Reports,  do.  2  do. 
Peters'    Reports    in    the    Circuit 

Court  of  the  United  States — 3d 

circuit,  1  do. 
Cranch's  Reports  of  Cases  in  the 

Supreme   Court  of  the  United 

States,  9  do. 
Wheaton's  Reports,  do.  8  do 


mw  r 


UC  SOUTHERN  REGIONAL  LIBRARY  FACIUTY 


AA    000  857  067    3 


